ORDER K.B. Asthana, J.
2. The petitioner was appointed on one year's probation as a Lecturer in the Muslim University Institute of Ophthalmology. The petitioner joined his post in the University on 1-10-1963 after resigning from his post as Ophthalmic Surgeon in the Gandhi Eye Hospital at Aligarh. According to the allegations of the petitioner he successfully completed his probationary period which expired on 30-9-1964 and was entitled for confirmation but to his surprise he was served with an order on 4-12-1964 that his probationary period had been extended by one year. Thereupon the petitioner made a representation on 8-12-1964 to the Vice-Chancellor of the University. According to the petitioner no orders of the Vice-Chancellor on his representation were communicated to him for three months and on 3-3-1965, the petitioner received a letter from the Director of the Institute informing him that the petitioner's representation had been considered by the Vice-Chancellor who was of the opinion that it was open to the University to extend the term of probation of the petitioner or to terminate his services without assigning any reason, It is alleged by the petitioner that he met the Vice Chancellor on 5-6-1965 and apprised him of his case and requested him to make an enquiry but despite the petitioner's request and submission of a list of relevant papers no enquiry was made and he was not given any opportunity to submit his explanation against the grounds on the basis of which his, probation had been extended. The extended period of probation of the petitioner expired on 30-9-1965, but no order from the University was received and the petitioner thought that he had been automatically confirmed. The petitioner, however, on 24-2-1966 applied to the Vice-Chancellor for an interview to ascertain about his confirmation and seniority but no reply to his request was received. Then on 21-4-1966 the petitioner was served with a one month's notice of termination of his services along with an extract of the resolution of the Executive Council dated 29-1-1966 passed on the basis of some report of unsatisfactory work and conduct on his part. A true copy of the said notice is Annexure "I" to the affidavit and a true copy of the extract from the minutes of the meeting of the Executive Council held on 29-1-1966 is Annexure "II" to the petitioner's affidavit. The text of the resolution of the Executive Council reproduced in the said Annexure is as follows:
''Resolved that the services of Dr. G.P. Gupta, Lecturer at the Institute of Ophthalmology, be dispensed with in view of the unsatisfactory report about his work and conduct during the extended period of his probation"
3. It would be seen that though the resolution dispensing with the services of the petitioner was passed by the Executive Council on 29-1-1966 yet the services of the petitioner in effect had been terminated by the notice Annexure "I" dated 20-4-1966 received by the petitioner on 21-4-1966 and since it was a one month's notice of termination of service, the period of one month beginning from the date of its receipt the services of the petitioner stood terminated with effect from 21-5-1966. The allegation of the petitioner that he was never informed during the period of probation of any unsatisfactory work or conduct on his part has been controverted in the counter-affidavits filed on behalf of the University which show that the Director of the Institute had some complaints in respect of the work and conduct of the petitioner and had on more than one occasion asked him to improve and to act on the directions of his seniors in treating the patients assigned to him. However, this fact has not been disputed by the opposite parties that before passing the impugned resolution dispensing with the services of the petitioner the Executive Council had not afforded any opportunity to the petitioner to submit an explanation against the grounds on which his work and conduct was thought to be unsatisfactory.
4. The main contentions raised on behalf of the petitioner in support of the petition by his learned counsel Sri S.N. Kacker are:
(i) that the action of the University in terminating the services of the petitioner was mala fide and (ii) that the resolution of the Executive Council dispensing with the services of the petitioner followed by the notice of termination was invalid as it was in violation of the statutory provisions which required an opportunity to be afforded to the petitioner to show cause against the proposed action to be taken against him.
5. The contention that the termination of the services of the petitioner was mala fide is grounded on the allegation that the Director of the Institute for personal reasons of his own was annoyed with the petitioner and in order to back his favourites, who were the colleagues of the petitioner, from the very beginning of the appointment of the petitioner adopted an attitude to put him down and because the petitioner tried to fight for his legitimate rights and claimed seniority, the Director mala fide recommended the termination of his services. On a perusal of the allegations in the affidavit, the counter-affidavits and the original the which Sri S.J. Hyder, learned counsel for the University was good enough to place before the Court, I do not find that any case has been made out by the petitioner for quashing of the impugned action of the University on the ground that It was mala fide. In fact I found from the relevant papers on the original record that the Director of the Institute took a sympathetic attitude and at no time recommended to the Vice-Chancellor for dispensing with the services of the petitioner.
The Director of the Institute even in the last resort recommended that the work of the petitioner be watched for some time more and it was hoped that the petitioner would improve. The whole record of the petitioner shows that he seemed to be over-enthusiastic in his work and thereby created complications. The whole anxiety of the Director of the Institute was to eurb the over-zealousness of the petitioner in tile matter of treatment of the patients assigned to him. The first contention of the learned counsel is, therefore, rejected.
6. Coming to the second contention of the learned counsel I may first consider an argument raised by Sri S.J. Hyder learned counsel for the University lie submitted that the petitioner being a probationer having no right to the post of Lecturer in the Institute ought not to be afforded any relief by this Court under Article 226 of the Constitution as it was permissible in law to the University which was his employer to dispense with services of the petitioner and in terminating his services the University has exercised its right as an employer and did not punish the petitioner. I do not think any question of punishment having been inflicted on the petitioner by the University arises on this part of the case. As a probationer though the petitioner may not have an absolute right to continue in the post or to claim a tide to the post but certainly he has a right to question the termination of his services if he can establish that the termination was brought about by the Executive Council of the University in violation of the provisions of the Aligarh Muslim University Act, the Statutes and the Ordinances framed under that Act. The relationship between the petitioner as a probationer Lecturer and the University is that of the employee and the employer respectively which is governed by the provisions of the Act, the Statutes and the Ordinances applicable thereto.
If those provisions lay down any rule of few which has to be complied by the Executive Council of the University in terminating the services of the petitioner after the period of his probation expired then any exercise of power by the Executive Council in violation of those provisions would be invalid and the action of the University would be in excess of its jurisdiction I think the petitioner is entitled to approach this Court under Article 226 of the Constitution and plead his case against the University in these circumstances.
7. The Aligarh Muslim University has been established and incorporated under the Aligarh Muslim University Act XL of 1920 passed by the Central Legislature The Executive Council is one of the Authorities of the University and is constituted as the Executive Body of the University. Its powers and duties have been prescribed by the Statutes. Statute 16 confers a power on the Executive Council to appoint Professors, Readers. Lecturers and other members of the teaching staff on the recommendations of the Selection Committee. By the Aligarh Muslim University (Amendment) Act, 1965 (Act 19 of 1965) published in the Gazette of India dated 22-9-1965. Statute 16 was amended The relevant amendment for our purposes is that a Clause (ii-B) was added empowering the Executive Council to regulate and enforce discipline among members of the leaching, administrative and ministerial staff of the University in accordance with the Statutes and the Ordinances. Then Statute 25-A which dealt with the removal of members and officers was amended by the amending Act No. 19 of 1965, and to Statute 25-A after Clause (2) a Clause (3) was added which appears to be material for the purposes of this case. Its text is as follows:
"(3) (a) Notwithstanding anything contained in the terms of his contract of service or of his appointment, the Executive Council shall be entitled to dismiss a teacher on grounds of misconduct, but save as aforesaid, the Executive Council shall not be entitled to determine the employment of a teacher save for good cause and after giving three months' notice in writing or payment of three months' salary in lieu of such notice.
(b) The determination of a teacher's employment shall require a two-thirds majority of the members of the Executive Council present and voting.
(c) The Vice-Chancellor may suspend a teacher against whom any misconduct is alleged and shall report the case to the next meeting of the Executive Council, but before any orders for dismissal are passed, the teacher shall be informed of the allegations made against him and shall be given a reasonable opportunity of making such representations to the "Executive Council or to any Committee thereof appointed for the purpose, as he may desire to make.
(d) Any dismissal on the ground of misconduct shall take effect on the date on which the teacher was first suspended.
(e) Before a notice is given or payment is made to the teacher under Sub-clause (a), he shall be informed by the Executive Council of the cause of the action proposed to be taken against him and shall be given a reasonable opportunity of making such representations to the Executive Council or to any Committee thereof appointed for the purpose, as he may desire to make.. .. ".
8. The contention of Sri Kacker, on behalf of the petitioner was that the amended statute having come into force with effect from 22-9-1965 the power of the Executive Council to determine the employment of a teacher could only be exercised for good cause and after giving three months' notice in writing or payment of three months' salary in lieu of such notice and before a notice could be given or payment made to the teacher it was incumbent upon the Executive Council to inform the teacher of the cause of action proposed to be taken against him and the teacher proceeded against was to be given a reasonable opportunity of making such representation to the Executive Council or to any Committee thereof appointed for -the purpose as he may desire 'o make
9. Sri S.J. Hyder for the University submitted that the termination of the services of a probationer would not amount to determination of employment within 'he meaning of statute 25-A and further the University had a right to terminate the services of the petitioner under the agreement by giving him one month's notice. It was submitted by Sri Hyder that Sub-clauses (a) and (e) of Clause 3 of statute 25-A applied only when the action proposed to be taken against a teacher was based on some good cause arising out of breach of discipline in the University. Learned counsel referred to the breakdown of discipline in the University a few months prior to coming into force of the Aligarh Muslim University (Amendment) Act 1965 and submitted that all the amendments were made to remedy the mischief that was perpetrated adversely affecting the academic atmosphere in the University and certain powers were vested in the Executive Council to terminate the services of teachers with a view to restore order. Sri Hyder relied also on Ordinance No. 2 of Chapter IV of the Executive Ordinances of the University which provided that every teacher of the University shall be appointed on probation for one year, after the expiry of which period he may be confirmed in his post and if he is not so confirmed, the Executive Council may, if it deems fit dispense with his services or extend the period of probation, but in no case the period of probation be extended beyond two years and submitted that the Executive Council had absolute power to dispense with the services of a probationer teacher.
10. Sri S.N. Kacker, learned counsel for the petitioner urged that under the Act, the Statutes take precedence over Ordinances and a teacher on probation being a teacher of the University as defined under the Act would be covered by Clause 3 of statute 25-A and the power of the Executive Council to dispense with his services which amounts to determination of employment of such a teacher would be controlled by the provisions of that Statute. Learned counsel submitted that there was no warrant for taking into consideration the recent unfortunate history of the break-down of order in the University in interpreting the amended provisions of the Act and the Statute in that light. I think Sri Kacker is on strong ground in his submission as I do not find that there is any indication whatsoever in the Aligarh Muslim University (Amendment) Act. 1965 (Act No. 19 of 1965) that the provisions were enacted and in particular Clause 3 was added, to remedy any temporary mischief.
It would be seen that before the amendment of statute 25-A there was no provision in the statute in regard to the dismissal and determination of services of the teachers. Statute 26-A, as it originally stood, only applied to the removal of members and officers of the University and did not apply to the teachers of the University. The legislature in its wisdom thought that the ambit of the power in regard to the removal of the teachers of the University should also be defined by the Statutes and it was with that intent and purpose that Clause 3 was added to Statute 25-A providing detailed provisions in that regard. Sri Kacker argued that in any view of the matter giving of three month's notice or three months' pay in lieu of the notice is a condition precedent for terminating the employment and the one month's notice served on the petitioner was not in conformity with the Statute.
11. It was then tried to be submitted by Sri S.J. Hyder that Clause 3 of Statute 25 A applies only in the case of permanent teachers and not in the case of probationers. It is difficult for me to agree with this submission. Once a teacher on probation is a teacher within the meaning of the Act, there is nothing to the contrary in Clause 3 of statute 25-A to show that a probationer teacher is not covered by it. It appears to me that when the Executive Council of the University passed its resolution on 29-1-1966 and the Registrar of the University sent one month's notice of termination to the petitioner a few months later, the effect of Clause 3 of amended statute 25-A was missed from consideration entirely as it had come into force only a few months before. I am, therefore, of, the opinion that even in the case of a probationer teacher when the Executive Council meets to deliberate upon whether his work and conduct has been satisfactory and having come to a conclusion otherwise, dispenses with the services of the teacher, it would be determining his employment for good cause within the meaning of Clause 3 of statute 25-A and it becomes incumbent upon the Executive Council under Sub-clause (e) of Clause 3 of statute 25-A to afford an opportunity to such a teacher against the cause of action proposed to be taken and then dispensing with his services of giving him 3 months' notice or three months' salary in lieu of notice. Thus the petitioner has made out a case that the procedure followed by the University in terminating or dispensing with his services violated Clause 3 of statute 25-A and is, therefore, invalid.
12. The result is that this petition succeeds. It is allowed. The impugned resolution of the Executive Council dated 29-1-1966 and the impugned notice of the Registrar dated 20-4-1966 are quashed. The petitioner would be entitled to his costs from the opposite parties which I assess at Rs. 200/-.