Mehrotra, J. - (1.) THIS second appeal by the plaintiff arises out of a suit for a declaration that the plaintiff is still continuing in ser vice of the defendant No. 4 as the Head Clerk in his substantive post and that the order of dismissal dated January 27, 1961, passed against the plaintiff by the defendant No. 3 is null and void and ineffective. The trial court decreed the suit but on appeal the lower appellate court reversed the decree of the trial court and dismissed the suit. Hence this second appeal by the plaintiff.
(2.) THE brief facts are these: The defendant-respondent No. 1, Arya Vidya Sabha, Kashi runs three educational institutions at Varanasi. One of these institutions is known as D.A.-V. Degree College. The plaintiff was appointed a clerk in the said Degree Col lege on December 5, 1945. Subsequently, he became the Head Clerk in the said institution on May 12, 1958 and it has not been disputed that he was a permanent incumbent in that post. The said institu tion is affiliated with the Benaras Hindu University and that fact is also admitted. The plaintiff was suspended on September 13, 1960, and was subsequently dismissed on January 27, 1961, by the defen dant No. 3 who happened to be the then Secretary and Manager of the institution. The dismissal was with retrospective effect, i.e., from September 13, 1960. In the suit the plaintiff challenged the order of dismissal on various grounds, The defendants contested the suit on various grounds but it is not necessary to notice all of them in the instant appeal. The trial court, after framing the necessary issues, as stated above, decreed the suit. The main ground on which the plaintiff succeeded was that there was violation of Ordinance 11, clause (v) of the Ordinances printed at page 385 of Part VI of the Calendar of the Benaras Hindu University (1962-63). In brief, the effect of the provisions contained in the said Ordinance is that the approval of the Executive Council of the University should be ob tained while terminating the service of a member of the staff of an affiliated College. The trial court held that no such approval was obtained in the case of the plaintiff and, therefore, his dismissal from the post of which he held was in contravention of the aforesaid pro vision contained in Ordinance 11, clause (v). On appeal, the lower appellate court held that there was no written contract between the parties as required by the said Ordinance No. 11 and, therefore, no right could be founded on the basis of the provision contained in clause (v) of the said Ordinance. To put the view point of the lower appellate court in the words which have been used in its judgment: "The freedom of the contracting parties to settle terms has not been absolutely taken away, but has been restricted in the sense that the written contract shall embody the points enumerated in clause (v). There is no provision in the Act brought to my notice that if the parties fail to reduce the contract between them to writing or to incorporate the terms of clause (v) in the con tract or they agree to different or contrary terms their act would be illegal or the contract between them would be void and un enforceable. The penalty for disobeying of violating the direc tions given in rule 11 (v) is to be visited on the College under rule 4 or 9 and the penalty is that the privileges may not be granted or may be withdrawn. But it is clear that in the ab sence of a contract the rule does not state that the person ap pointed to the staff will have the right ensured under clause (v). The rule does not lay down that the benefits of rule 11 (v) will ipso facto accrue to the member of staff and on implied contract will be deemed to exist between the parties to that effect." In the instant appeal Shri Sidheshwari Prasad, the learned counsel for the appellant, has submitted that the approach of the lower appellate court as set out in the passage extracted above from the judgment of the said court is erroneous in law and stands condemned in view of the subsequent pronouncement of the Full Bench decision of this Court in Vaish College (Society), Shamli v. Sri Lakshmi Narain A.I.R. 1974 All. 1. The Full Bench had to consider certain provi sions contained in the Acts and statutes framed thereunder relating to the Agra University and the Meerut University. There also cer tain affiliated Colleges and their Managing Committee were in the picture. It was laid down: "The service of a teacher including the principal of the affiliat ed colleges in question is not purely contractual and is regulated and controlled by the provisions of the Meerut Act and the Sta tutes. The Management of the two colleges concerned acts as a statutory body or statutory functionary when it takes action to terminate the service of a teacher. The teacher will be entitled to an appropriate injunction and a declarator of statutory invalidity of the action taken against him in terminating his service by the Management in violation of any provision of the Meerut Act and Statutes."
(3.) Shri Sidheshwari Prasad, en the basis of the Full Bench decision, submitted that the absence of a written contract in the instant case will not change legal position and the employer could not set up an absence of such contract with a view to abridge the rights given to the employee under the Statute in question. He relied upon the ob servations contained in para 17 of the judgment of the Full Bench: "Sub-section (1) of Section 28 of the Meerut Act enacts that every teacher in an affiliated college shall be appointed under a written contract which shall contain such terms and conditions as may be prescribed. Sub-section (3) enacts that every deci sion by the Management of an affiliated college to dismiss or re move from service a teacher, shall be reported forthwith to the Vice-Chancellor and, subject to the provisions contained in the Statutes shall not take effect unless it has been approved by the Vice-Chancellor. Here at this stage it is proper to note that in 1964 when Sri Laxmi Narain was appointed permanent principal of the Vaish College and his appointment was approved by the Vice- Chancellor of the Agra University as found by the Courts below, no written contract as contemplated by sub-section (1) of Section 25-C of the Agra Act was executed but before us the learned counsel for the parties proceeded on the basis that his ap pointment was in order as if he was appointed under a written contract." ;