R. B. Mehrotra, J.@mdashThe present second appeal has been filed by the plaintiffappellants.
2. The facts necessary for the decision of the appeal are as under Sachidanand Dubey, Raj Narain Rai and Saudagar Ram, the plaintiffs in substituted original suit No. 73 of 1989, in the Court of Munsif (East) Ballia. The defendants arrayed in the suit, inter alia, wore Committee of Management, Shri Sant Ram Raj Goswami Junior High School, Daulatpur, Manager of the same institution through Sri Madhusadan Singh and Sri Sant Ram Raj Junior High School through its alleged Manager Sri Baleshar Singh, Committee of Management of the same institution through Sri Giuri Shanker Singh, District Basic Education Officer, and State of U. P.
3. The relief claimed in the suit was as under :
(a) An injunction be issued against defendant No. 3 and defendant Nos. 1 to 4 restraining them from selecting any person on the post on which the plaintiffs are posted and working and in case the selection has already been made, defendant No. 5 may be restrained from granting sanction to the aforesaid selection and the defendants may further be restrained from interfering in any manner in the working of the plaintiffs as Assistant Teachers in Shri Sant Ram Raj Goswami Junior High School, Daulatpur Ballia (hereinafter referred to as ''institution''). The facts as stated in the plaint are as under :
Sri Sant Ram Raj Goswami Junior High School, Daulatpur, Ballia is being run by a Society through its Committee of Management, The Society is registered under the Societies Registration Act. On 22nd October 1978 Sri Shashi Bhushan Singh was the President of the Committee of Management and Sri Baleshwar Singh was its Manager. A vote of no confidence was passed against the Manager of the Committee of Management and he was removed from its Management and in his place Sri Madhu Sudan Singh defendant No. 3 was elected as Manager. A dispute arose regarding the removal of Sri Baleshwar Singh, defendant No. 3 from the post of Manager through vote of no confidence and the said dispute became subjectmatter of litigation with which the plaintiffs arc not concerned. Plaintiff No. 1 was appointed on permanent basis as Assistant Teacher in Shri Sant Ram Raj Goswami Junior High School, Daulatpur hereinafter referred to as the institution on 1121977. The plaintiff No. 2 was appointed on 121977 as Assistant Teacher in the aforesaid institution whereas plaintiff No. 3 was appointed on 1771972 as Assistant Teacher in the institution. Plaintiffs No. 1 and 2 were appointed in the payscale of Rs. 180 per month. The appointment of plaintiffs was duly approved by the Basic Education Officer on 2241990.
4. It was further stated in the plaint that defendant No. 3 was insisting on the plaintiffs to accept lesser amount of salary and sign on a receipt showing the full amount of salary. The plaintiffs refused to accede to this illegal request of defendant No. 3 who was de facto Manager of the Committee of Management of the institution. Defendant No. 3 out of malice have advertised the post on which the plaintiffs were working treating the post to be vacant. Concealing the correct fact defendant No. 3 is trying to obtain approval of District Basic Education Officer for new appointments. The plaintiffs further stated that the plaintiffs are working as teachers to the satisfaction of all concern and discharge their duties honestly and bona fidely. No notice of terminating the services of the plaintiffs have ever been given.'' The plaintiffs are working from the date of their appointment. However, the defendant Nos. 1 to 4 have not paid salary to the plaintiffs from September, 1979 till filing of the suit and the defendants are trying to obtain approval for appointment on the post on which the plaintiffs are working. On plaintiffs requests three months'' salary for the month of My, August and September, 1980 has been given to them by defendant No. 2. The defendants have no right to treat the post vacant, on which the plaintiffs arc duly appointed and working. The defendants have threatened that they will not permit the appellants to work on their post and will select other persons on their pout and will get the approval of Basic Education Officer for the new selected persons, the cause of action is claimed to have arisen on 2521981. The suit was filed on 331981. Alongwith the plaint an application under Order XXXIX, Rule 1 for interim injunction was also filed praying therein that during the pendency of the suit the defendants be restrained from interfering with the working of the plaintiffs and payment of salary to them. The suit was contested by the two set of Managements who were claiming their right to manage the institutions one set of management, namely, defendant Nos. 1 and 2 supported the plaintiffs'' suit whereas defendant Nos. 3 and 4 contested the suit, the suit was not contested by the District Basic Education Officer and State of U. P, who were arrayed as defendant Nos. S and 6. On 7th September, 1981 the trial court allowed the application for temporary injunction and restraining the defendants from appointing new teachers in place of the plaintiffs under the pretext that the posts occupied by the plaintiffs have stood vacant. Aggrieved thereby the defendant Nos. 3 and 4 filed Miscellaneous Appeals No. 122 of 1981 and 118 of 1981. The IIIrd Additional District Judge Appellate Court by his judgment dated 2291981 dismissed the defendants appeal and upheld the order of the trial court granting interim injunction in favour of the plaintiffs. In the aforesaid judgment the appellate court held as under :
"It is not denied by the appellants that the plaintiffs were appointed as Assistant Teacher in the institution. It is also not denied that they had been continuing in the service of the institution since their appointments. It is further not denied that the institution, the Junior High School, previously got a temporary recognition and since 2241980 it has got permanent recognition. It is further not denied that at the occasion of permanent recognition the Zila Basic Shiksha Adhikari sent his report and approved the plaintiffs as Assistant Teachers in the institution to the higher educational authorities. The plaintiffs have filed the photostat copy of the Attendance Register for certain months including August, 1980 to show that they were serving as Assistant Teachers in the institution even after permanent recognition was acquired. According to rules the Management Committee cannot terminate the services of a Teacher except with the previous approval of the Zila Basic Shiksha Adhikari. There is no allegation or any piece of evidence on record to show that the services of the plaintiffs were ever terminated according to the rules by the Management Committee."
5. The judgment passed by the appellate court in Miscellaneous Appeal has been extracted above only for the purposes of emphasising the undisputed facts between the parties.
6. On the pleadings of the parties issues were framed by the trial court. Only following issues are relevant for the decision of the present appeal:
(i) Whether the plaintiffs are permanent teachers in Shri Sant Ram Raj Goswami Junior High School. If so, its effect ?
(ii) Whether the suit is bad for nonjoinder of necessary party ?
(iii) To what relief, if any, the plaintiff is entitled ?
7. The Additional MunsifVII, Ballia decreed the suit vide its judgment dated 26111984. The trial court held that the plaintiffs were duly appointed permanent Assistant Teachers of the aforesaid institution and their services have already been approved by the Basic Shiksha Adhikari in accordance with the provisions of the service Rules. The trial court further held that the plaintiffs are entitled to continue in service unless their services are terminated in accordance with law. The Committee of Management has no right to terminate the services of the plaintiffs. The court also held that the Committee of Management is illegally trying to interfere in the plaintiffs'' working as teachers and passed decree of prohibitory injunction against the defendants restraining the defendants from interfering in the working of the plaintiffs as teachers of the institution.
8. Aggrieved by the aforesaid judgment and decree Sri Gauri Shanker Singh, respondent No. 4 de facto President and Sri Baleshwar Singh, de facto Manager of the institution filed Civil Appeal No. 131 of 1985 to challenge the aforesaid judgment. The District Judge, Ballia vide its judgment and order dated 191989 allowed the appeal and set aside the judgment and decree passed by the trial court dated 26111984 and dismissed the suit of the plaintiffs. Aggrieved thereby the present second appeal has been filed by the plaintiffs.
9. After filing of the appeal an alleged compromise was filed between the parties which was ultimately rejected by the detailed reasoned order by this Hon''ble Court but the said order has no bearing on merits of the appeal. The appeal itself was opposed at the admission stage.
10. On 2211991 a learned Single Judge of this Court passed the following order i
"Sri Sankatha Rai, learned counsel for the appellant vehemently argued that the question involved in the present appeal are only question of law which can and should be decided at the admission stage. Sri S. N. Singh, learned counsel for the respondents has no objection to the said prayer. Both the learned counsel make a statement that the lower court''s record is not necessary. As jointly requested let the written statements be filed by the learned counsel for the parties within 10 days from today and the matter may be posted for orders on 3011991 when it may be disposed of finally."
11. In the background of the aforesaid order the matter came up before me on 2011995 for final disposal.
12. I was of the view that the record will be necessary for the decision of the appeal, so I directed to summon the record of the case. The courts below record was made available as per my direction. The matter was heard at the admission stage finally with the consent of the parties.
13. Having heard the learned counsel for the parties I am of the view following substantial questions of law arise for consideration in the present matter:
(1J Whether the relief of prohibitory injunction claimed by the plaintiffs in the facts of the present case, restraining the defendants from interfering in the working of the plaintiffs as teacher in the institution can be granted. ?
14. So far as the factual controversy is concerned the trial court on the basis of the assessment of the evidence held that the plaintiffs were working on the date the plaintiffs filed the suit. This findings of facts has been reversed by the lower appellate court which held that on the date the suit was filed the plaintiffs have failed to prove that they were working.
15. This factual controversy is essentially of no consequence in the present matter. It is not disputed between the parties that the plaintiffs were duly appointed on permanent basis, the trial court has recorded a categorical finding to that effect which has not been reversed by the appellate court. It is also not disputed that the services of the plaintiffs were terminated in violation of a statutory rule i. e. Rule 15 of the Service Rules, which is as under :
15. Termination of Service,No Headmaster or assistant teacher of a recognized school may be discharged or removed or dismissed from service or reduce in rank or subjected to any diminution in emoluments or served with notice of termination of service except with the prior approval in writing of the District Basic Education Officer."
16. The appointment of the plaintiffs were duly approved as required under the provisions of the Service Rules. The services of the plaintiffs were terminated by order dated 20th May, 1980, The order terminating the services of the plaintiffs were disapproved by the Basic Shiksha Adhikari on 2nd July, 1980. These facts have been found in favour of the plaintiffs by the trial Court and the said findings have not been disturbed by the lower appellate court so there is no dispute about these facts.
17. The judgment of the appellate court on the aforesaid point, is being reproduced below i
"The learned counsel for the plaintiffs respondents also pointed out that the D. I. O. S. did not approve the removal of the teachers from their post. Even if this approval was not made it cannot be said that the plaintiffs respondents continued in service. The authorities having a right of approval only could either agree or disagree with the decision taken by the authorities which is to be left for their approval. In case of disapproval the authorities will have a ''chance to reconsider the decision taken by them but it cannot be said that the persons who have been ousted from the office would be deemed to continue on their post. Therefore, these documents do not at all become relevant for holding that the plaintiffs respondents were continuing in the service. On the other hand, it is proved that had been nicknaming the institution by siding with one or two persons of the Management who did not hold any post and thereafter claiming a right to remain in the service of the institution."
18. The admitted proved facts make it clear that the plaintiffs were duly appointed and their services were governed by the service rules. The order of terminating the services of the plaintiffs by the defendants were patently in contravention of statutory rules.
19. In view of the aforesaid admitted facts the question which requires consideration in the present matter is as to whether the plaintiffs were entitled for prohibitory injunction in a regular suit restraining the defendants from interfering in their working as Assistant Teachers in the institution. The bulk of the judgment of the lower appellate court is concentrated on the aspect whether the plaintiffs were continuing in service on the date the suit was filed. As stated earlier, the said aspect was not relevant. The real question is whether the defendants are entitled to restrain the plaintiffs from working as Assistant Teachers in accordance with law and in case they are not so entitled whether the plaintiffs can be granted a relief of mandatory injunction in a regular suit.
20. The lower appellate court has, however, also held that the plaintiffs are not entitled to seek the relief of prohibitory injunction as it will amount to enforcing the contract of personal service. The lower appellate court has placed reliance on following decisions for arriving at the said conclusion :
(1) Executive Committee of Vaish Degree College Shatnli v. Laxmi Narain, AIR 1976 SC 888.
(2) Shivraj Singh v. Devju Mal Asha Ram Paliwal Educational Association, Shikarpur, Bulandshahr, 1986 UPLBEC 20.
(3) Yogendra Nath Tripathi v. State of U. P., 1987 UPLBEC 44.
21. The sheetanchor of the defendant respondents is the leading judgment of the Hon''ble Supreme Court in the Executive Committee of Vaish Degree College v. Laxmi Narain (supra) wherein the Apex Court has held that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists an employee after having been removed from service cannot be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognized exceptions :
(1) Where a public servant is said to be removed from service in contravention of provisions of Article 311 of the Constitution of India.
(2) Where a worker is sought to be reinstated on being dismissed under the Industrial Law, and where a statutory body acts in breach of the statute.
(3) Where a statutory body acts in breach or violation of the mandatory provisions of the statute.
22. The Apex Court has further held that the Excutive Committee of the College in the said cases was not a statutory body, the present case does not fall within any of the excepted categories mentioned above, and hence prima facie, the plaintiffs respondents are not entitled to any declaration or injunction.
23. Before considering the import an extent of the decision of the Hon''ble Supreme Court in Executive Committee of Vaish Degree College (supra) it is necessary to analyze the statutory provisions and the background in which the Legislature intervened for regulating the service condition of teachers of educational institutions throughout the countrary with particular reference to the State of U. P. It was realised that the Managing Committees are exploiting the teachers employed in the educational institution and behaving in a wholly arbitrary and dictatorially fashion in dealing with the teachers working in the educational institutions discharging onerous obligation of educating the coming generation of the country. In every field the Legislature enacted several enactments governing the service conditions of the teachers employed right from Basic Schools to the Universities. For our purposes it is not necessary to analyse the provisions of the Act governing all educational institutions. It is enough to mention that in the background of exploitation by the private Management of the teachers working in educational institution, the Legislature has enacted various enactments regulating the working of the institution. The mode of recognition and curriculum which the educational institutions are required to teach and other aspects of imparting education including the service conditions of the teachers.
24. As for back as in the year 1972 U. P. Basic Education Act, 1972 was enacted by the U. P. Legislature. The main objects of the aforesaid enactments are relevant for the purposes and the same are being reproduced below :
"Prefatory NoteStatement of Objects and Reasons.(1) The responsibility for primary education has so far rested with the Zila Parisha Is in rural areas and with Municipal Boards and Mahapalika in urban area. The administration of education at this level by the local bodies was not satisfactory, and it was deteriorating day by day. There was public demand for the Government to take immediate steps for improving the education it became necessary for the State Government to take over its control into its own hands.
(2) Repeated demands had been made by all sections of the Legislature also for the takeover of the control of elementary education by the State Government from local bodies. Echoing this public demand, the Governor had also in his address to both the Houses of the Legislature on March 20, 1972, said that in order to strengthen the primary and junior high schools and to increase their usefulness Government was going to assume full responsibility for its control and management.
(3) With a view to taking effective steps for securing the object of Article 45 of the Constitution, and fulfilling the assurances given in the Governor address and respecting the popular demand it was necessary to entrust the conduct and control elementary education to a virile institution which may be expected to inject new life into it and to make it progressive. It was, therefore, decided by the Government to transfer the control of primary education from the local bodies to the Uttar Pradesh Board of Basic Education with effect from the educational session 197273."
25. The aforesaid enactment was amended by U. P. Act No. 12 of 1978 whereby Section 19 of the Act was amended and it was provided that the State Government may by notification make rules for carry out the purposes of the Act in beyond and without prejudiced to the generality of the foregoing powers. The rules may provide for the recruitment and conditions of service of the persons appointed to the post of teachers, the tenure of service remuneration and other conditions relating to the teachers and other employees of the Junior High School.
26. Section 3 of the Act provides that the State Government will appoint U. P. Board of Basic Education Officer, Section 4 of the Act provided that function of the Board is to organize coordinate and control the imparting of Basic Education and the teachers training in the State to raise its standard and corelate it with the system of educations as a whole in the State. Section 12 of the Act provides that the Director may from time to .time inspect or cause to be inspected any basic schools and direct the Management of basic school to remove any defect or deficiency found on inspection or otherwise and in case the Management fails to comply with the direction of the Director given to the Management refer the case to the Board for withdrawal of recognition of such school and in respect of such recognition the school shall be withdrawn.
27. Section 13 provides that the Board shall carry out such directions as may be issued to it from time to time. Under the aforesaid Act U. P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 were framed. These Rules regulated the recruitment and conditions of the teachers of Junior High Schools. Rule 4 provides the minimum qualification of the teachers, Rule 5 provides eligibility for appointment of Head Master or assistant teacher, Rule 6 provides for disqualification, Rule 7 provides the mandatory provisions for advertisement of vacancy for filling the post, Rule 8 provides the agelimit for appointment, Rule 9 provides the Selection Committee constituted for the purpose of selecting the teachers in basic schools. In this Selection Committee one nominee of District Basic Education Officer is also required to be there. Rule 10 provides the procedure for selection of the teachers and inter alia, provided that all candidates who applied for the post shall be given due intimation of the date of interview and a list containing as far as possible the names, in order of preference, of three candidates found to be suitable for appointment shall be prepared. The list so prepared shall also contain the particulars regarding the date of birth, academic qualifications and teaching experience etc. The Selection Committee shall forward such list to the Committee of Management. Thereafter the Manager shall send a copy of the list to the District Basic Education Officer. Rule 10(5) provides that if the District Basic Education Officer is satisfied that the candidates recommended by the Selection Committee possesses the minimum qualifications and the procedure prescribed for selection has been followed by the District Basic Education Officer shall communicate his decision within two weeks from the date of the papers. It is also provided that if the District Basic Education Officer is not satisfied, he shall return the papers. Rule 11 provided that on receipt of the communication of approval, the Management shall first after appointment to the candidate given, the first preference and so on Rule 12 provided for procedure for confirmation. Rule 13 provided for incitements. Rule 14 provided for age of superannuation and Rule 15 provided that the service of any Headmaster or teacher etc. Of a recognized School shall not be terminated except with the prior approval in writing of the District Basic Education Officer.
28. Despite the aforesaid Rules and control of the District Basic Education Officer, the Management continued to exploit the teachers in the matter of payment of salaries and there were complaints from the teachers that the Managements are insisting on signing the receipt for full salary whereas offering lesser payment. The Legislature in the aforesaid background has enacted by U. P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978.
Prefatory noteStatement Objects and Reasons of the aforesaid enactment is relevant for the purposes of controversy involved herein and the same is being reproduced below :
"Prefatory noteStatement of Object and Reasons. There have been frequent complaints that salaries of teachers and nonteaching employees aided nonGovernment Junior High Schools are not disbursed in time with resulting hardships to these employees. Instruction issued to the managements of such instructions from time to time have not been effective. The Bills seeks to remove this hardship and to ensure regular and timely payment of salaries as also to provide for supersession and punishment of defaulting managements. This Bill is being introduced accordingly."
Section 3 of the aforesaid enactment made a provisions that notwithstanding any contract to the contrary, the salary of a teacher or other employee of an institution in respect of any period after the appointed day shall be paid to him before the expiry of 20th day......of the month in next following the month in respect of which or any part of which the salary is due and in case salary is not so paid the District Inspector of Schools shall cause to be paid within ten days from the date fixed for payment of salary. The entire responsibility of payment of salary was taken over by the State Government. The payment of salaries was also controlled by the Act. It was provided that the liability of payment of salary will be on the State Government, regarding payment of salaries of the teachers of Junior High Schools and in case it is found that the Management has arbitrarily withheld the salary and not paid it to the concerned teachers the State Government shall ensure payment of salary from the Management. There is some controversy between the parties in the present matter as to whether on the date the suit was filed. The provisions of the aforesaid Act were available to the plaintiffs or not but, however, this factual contoversy will not make much difference as the aforesaid provisions have been quoted only to emphasise that the Basic Education has not been left, to the fiat of the private Management and the State legislature has taken care that right from the point of recognition of the institution, the appointment, service condition and termination of the service of the teachers serving in the Junior High School is governed by the statutory provisions. It need not be stressed that similar enactment has been made in regard to the Secondary Education and Higher Education also in the State of U. P. At this stage it is also relevant to address on the question as to whether imparting of education can be claimed by the private Managements as their fiat and they can be permitted to deal with the teachers in the arbitrary manner as they want, even assuming that these socalled Managing Committee, are managing the institutions despite the fact that the Government has taken responsibility of regulating every steps of managing the educational institution including the appointment and service conditions of the teachers protecting the arbitrary action of the Management from terminating the services of the teachers and also ensuring the payment of their salaries.
29. In Unni Krishnan, J. P. v. State of A. P., AIR 1943 SC 2118, the Apex Court held "every child/citizen of this country has a right to free education until he completes the age of 14 years. Thereafter his right to education is subject to the limits of economic capacity and development of the State"...... Basic Education is primarily concerned with a child within the agelimit of 14 years, exception apart getting an education is a fundamental right of child imparting Basic Education is an obligation for discharging the fundamental right.
30. In the aforesaid decision it has also been held that "educational institutions are discharging public duties and are required to act fairly."
31. The Constitution Bench of the Apex Court therein further held as under :
"We are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19 (1) (g). Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country. Making it one is opposed to the others, tradition and sensibilities or this nation. The argument to the contrary has an unholy ring to it. Imparting of education has never been treated as a trade or business in this country since times immemorial. It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business."
32. In the present case there is no agreement or contract between the teacher and the Management. The appointment of the teacher of a Junior High School is regulated by a statutory provision and in terms exactly the appointment of a teacher in a Junior High School is a statutory appointment. The service conditions of the teachers are governed by the statutory rules. The Committee of Management are under an obligation to discharge the public duty to act in accordance with the statutory rules while dealing with the teachers of the Junior High School as they are discharging constitutional obligation of imparting basic education which is a fundamental right of a child in this country upto the age of 14 years. The very concept of enforcement of a personal contract, which was the basic philosophy for nunsuiting the plaintiffs of the Executive Committee of Vaish Degree College (supra; is not attracted in the present case. The Apex Court held that the plaintiffs in Vaish College cage have failed to prove any statutory contract as such the same cannot be permitted to be enforced. The relevant portion of the Executive Committee of Vaish Degree College case adverted to the aforesaid portion is often missed by the Court while following the aforesaid decision. The relevant portion from the Executive Committee of Vaish Degree College case (supra) which is relevant for our purpose is reproduced below :
"On a plain reading of Statute 151, it is clear that it only provides that the terms and conditions mentioned therein must be incorporated in the contract to be entered into between the College and the teacher concerned, it does not say that the terms and conditions have any legal force until and unless they are embodied in an agreement. To put ii in other words, the terms and conditions of service mentioned in Statute 151 have proprio vigora no force of law. They, become terms and conditions of service only by virtue of their being incorporated in the contract. Without the contract, they have no vitality and can confer no legal rights..............The High Court also failed to consider that there was a concurrent finding of fact by all the Courts below that the plaintiff respondent never executed any agreement with the Executive Committee of the College in the form prescribed by the statutes of the Agra University Act."
33. In the aforesaid facts the Apex Court was of the opinion that since there is no statutory agreement between the teachers and the Executive Committee, the said provision could not be enforced. In subsequent decision the Apex Court has always distinguish a situation where the statutory agreement is there or there is a statutory appointment.
34. In Indrapal Gupta v. The Managing Committee, Model Inter College, Thora AIR 1984 SC 1110. in the matter where the services of teachers were terminated in violation of the provisions of the U. P. Intermediate Education Act and the Division Bench of the High Court having dismissed the writ petition of the petitioner, therein the Hon''ble Supreme Court has allowed the appeal set aside the judgment in Division Beach and declared : "That the appellants continue to be in service of the College is entitled all the benefits flowing from this declaration including the salary and allowances as if there was no break in his service."
35. In Rajendra Prasad v. Kayastha Pathshala and others, AIR 1987 SC 1644, a Single Bench of this Hon''ble Court dismissed the plaintiffs'' second appeal challenging the order of suspension passed against the plaintiffs on the ground that permitting the plaintiffs to continue in service in the College will tantamount to enforcing a contract of personal service. The learned Single Judge has placed reliance on the decisions of the Executive Committee of Vaish Degree College (supra) for the aforesaid proposition. The Hon''ble Supreme Court set aside the judgment on the ground that the suspension of the plaintiffs was in violation of the mandatory provisions of the Act. The Court held that the High Court was wrong in refusing to grant the declaration that the order of suspension ceased to be operative w.e.f. 17101975."
36. In Deepak Kumar v. Director of Public Instructions and others, AIR 1990 SC 419, the Apex Court affirmed the Executive Committee of Vaish Degree College case as well as Indra Pal Gupta v. The Managing Committee Model Inter College, Thora, (supra), referred earlier, and expressed inability to grant relief to the plaintiffs on the ground that the termination of the services of the plaintiffs has not been proved to be in violation of any statutory provision, regulation of procedural law. The relevant portion is quoted below i
"No doubt his action has been held to be wrongful but even so it is not in contravention of any statutory provision or regulation or procedural rules. We are, therefore, unable to accept the appellants'' contention that he should be granted a declaration that he continues to be in service of the College and that he is entitled to all the benefits flowing from this declaration."
37. In Kayastha Pathshala v. Rajendra Prasad, AIR 1990 SC 419, in the matter of suspension of a teacher of an Intermediate College, the Vaish Degree College case was pressed in the service contending that the relief for declaration of suspension to be illegal cannot be granted to the plaintiff. The court left the question open and did not express any view.''''
38. In Nandganj Sihori Sugar Co. Ltd, Rai Bareili and another v. Badri Nath Dixit and others, AIR 1991 SC 1525, the Apex Court affirmed the view taker in the Executive Committee of Vaish Degree College case (supra), however, clarified "in absence of any statutory requirement, Courts do not ordinarily force an employer to recruit or retain in service an employee not required by the employer."
39. In Integrated Rural Development Agency v. Ram Pyare Pandey, JT 1995 (3) SC 119 the apex Court again reaffirmed the explanation carved out in Nandganj Sihori Sugar Limited (supra) and placed reliance on Ridge v. Baldwin, 1963 (2) All England Report, 66 (para 5). The relevant portion from the said English Judgment is quoted for convenience :
"So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in him own defence ; it depends on whether the facts emerging at the trial prove breach on contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them."
40. On an analysis of the aforesaid follow up decision of the Executive Committee of Vaish Degree College case (supra) it is apparent that the Apex Court has clearly carved out an exception to the general propositions laid down In the Executive Committee of Vaish Degree College case (supra) where a private body has acted in violation of a statutory provision.
41. It is to emphasis again that in the present case there was no contract of personal service between the plaintiff and defendants 3 and 4 and exactly no relationship of master and servant existed. The appointment, service conditions and termination etc. were all governed by statutory provisions. The State or officer of the State are also necessary parties to ensure that the appointment of Junior High School Teacher is made in accordance with law and in the manner prescribed. The relationship between a teacher of Basic Junior School and its Management cannot be equated with that of servant and master on the basis of personal contract of service.
42. In view of the above analysis I am of the view that the ratio of Executive Committee Vaish Degree College case and its follow up decisions are not attracted in the present case. The plaintiffs have filed a suit for mandatory injunction restraining the defendants from interfering in their statutory right to perfrom their constitutional obligation to impart education in accordance with the provisions of the statute. Section 39 of the Specific Relief Act as amended in the year 1963 is quoted herein below for convenient reference :
"39. Mandatory injunctions.When to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.
''Ubi just ibi remedium'' is a familiar legal maxim, meaning where there is a right, there is a remedy. Towards this ideal, society has been progressing, steadily if sometimes haltingly. A mature legal system goes a step further and endeavours to provide not merely a remedy for every right infringed, but also an adequate remedy. It was in this process of a search for effective remedial action that Specific Relief emanated from the Equity Courts in England. The principles laboriously built up by successive Chancellors of England in this branch of law have been copiously borrowed by the Indian Courts and have served to enrich the Indian Law. This fertilisation of Indian Law by the Equity Jurisprudence of England produced in duo course the Specific Relief Act of 187 7."*
43. Addressing the original Common Law in England it has been pointed out "the invention of the writs", as Holdsworth points out, "was really the making of the English Common Law" and this took place between 1150 and 1250 :
"Two special writs that issue from the King''s Bench were the writs of mandamus and certiorari. By the former and person, corporation or inferior court would be commanded to do some particular thing specified therein appertain to its office or duty which the Court of King''s Bench deemed to be necessary in the interests of justice. The writ of certiorari was issued to judges or officers of inferior jurisdiction to have proceedings before them sent for scrutiny to the Court of the king''s Bench."
44. The Specific Relief Act, 1877 was not exhaustive. For many decades the Act of 1877 was subjected to judicial interpretation revealing in the process many deficiencies and lacunae and giving rise in several instances to divergencies and cleavages of judicial opinion. On the basis of recommendation ol the Law Commission 9th Report, the Specific Relief Act was amended and the Amended Act of 1963 came into force from 1st March, 1964 involving major changes in 1877 Act.
45. In the Act of 1963, in er alia, the Specific Relief Act provided for granting injunction in the aforesaid historical development of Common law of writs and on the basis of several Law Commissions'' report in Act 1963 Section 39 was engrafted for preventing a breach of obligation.
46. If the breach of obligation is by an authority refusing to perform a public duty can a plaintiff come forward to claim a relief under Section 39 of the Specific Relief Act is a question engaging attention of this Court in the present matter. As in England, Law of writs, have been developing according to the changing requirement of the Society. So in India the Courts have taken cognizance of the changing situation and have accepted the position that a private body can be compelled to perform at public duty.
47. In Bahadur Singh v. Managing Committee of Janta Vidyalaya Junior High School, Athilapur, District Ballia, (1989) 1 UPLBEC 109, this Court, was ceased of a matter where the Committee of Management challenged the order of .Basic Shiksha Adhikari, directing for payment of salary to a teacher in a Junior High School. In the said case both the courts below held that the Basic Shiksha Adhikari had no power to issue such a direction to thrust on the Management, which was unwilling to take work, from the teacher on the basis that the relationship between the teacher and the Management was purely contractual in nature and the aggrieved teachers can claim only one relief from the Management i.e. by way of compensation/damages. This court depreciated the aforesaid approach of the courts below and held as under :
"It is apparent that the view taken by the courts below that the relationship between the appellant and the Management was purely contractual is unsustainable in law. The terms and conditions of service of teachers are regulated by statutes including the U. P. recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. The teachers of such institution enjoy a status and their employment could be brought about end to only by action which is taken in accordance with those rules. The courts below have, however, made on effort to examine whether the dismissal of the appellant was in accordance with law probably because they were of the opinion that it could not go into that question."
In Shri Anadi Mukta Sadguru Shree Muktajee Vandasji Swami Suvarna Jayanti Mahotsav Smarak Trust v. V. R. Rudani, AIR 1989 SC 1607 the Apex Court extended the scope of issuing the mandamus even to private .bodies, if they are conferred with discharge of public functions. The Apex Court held that the law related to mandamus has made the most spectacular advances and the concepts of issuing writs on the basis of English law confining the prerogative writs only to statutory bodies have undergone a sea change. The court held that in view of the development of law the High Court can issue a writ in the nature of mandamus striking departure from English Law for enforcement of any statutory obligation even on private bodies. The relevant portion of the aforesaid judgment is reproduced below :
"14. 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 can not be denied. It has to be appreciated that the appellants trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See The Evolving Indian Administrative Law by M. P. Jain (1983) p. 266. So are service conditions the academic staff. When the University takes a decision regarding their payscales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. If has superadded protection by University decisions creating a legal rightduty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.
The law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(l)(e) of the Law Commission Act, 1965, requested the Law Commission "to revies the existing remedies for the judicial control of administrative acts commissions with a view to evolving a simpler and more effective procedure. "The Law Commission made their report in March 1976 (Law Com. No. 73). It was implemented by Rules of Court (Order LIII) in 1977 and given statutory force in 1981 by Section 31 of the Supreme Court Act, 1981. It combined all the former remedies into one proceeding called judicial review. Lord Denning explains the scope of this "judicial review" : "At one stroke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditions. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no crossexamination, no discovery, and so forth. But there were important safeguards. In particular in order to qualify, the applicant had to get the leave of a judge.
The statute is phrased inflexible terms. It gives scope for development. It uses the words "having regard to". Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to ''have regard to it''. So the previous law as to who areand who are notpublic authorities is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing." (See : The Closing Chapter by Rt. Hon. Lord Denning p. 122). There, however, the prerogative writ of mandamus confined only to public authorities to compel performance of public duty. The ''public authority'' for them means every body which is created by statute and whose powers and duties are defined by statute. So Government departments, local authorities, and statutory undertakings and corporations are all ''public authorities''. But there is no such limitation for our High Courts to issue the writ in the nature of mandamus. Article 226 confer wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a 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."
48. In this background it is clear, that, bad the plaintiffs approached this court for issue a proper writ directing the defendants not ro restrain the plaintiffs from working as teacher, this Court, in view of the law laid down by the Apex Court, above, could have issued the necessary mandamus. The question is whether two standards can be adopted one for a person who approaches the High Court, for a prerogative writ of mandamus, the other for the person who files a civil suit seeking the same relief through mandatory injunction ? The High Court has its own limitation of issuing writs where disputed question of facts are involved whereas Civil Court is the only proper forum, for adjudicating question of facts. In this view of the matter the appropriate forum, for seeking a direction, against a private body, for enforcing a public duty, or statutory or constitutional obligation is only civil court. Any other view will only be defensive of justice. The courts arc under any obligation to enhance the cause of justice, enforce statutory obligation against all. The Court cannot be allowed to be passive spectator permitting private management to flout the statutory provisions particularly in relation to imparting of basic education which is a fundamental right of the future citizen of. this country.
49. A detailed above, the prerogative writs, in England from whom we have essentially borrowed the terminology in our Constitution, were only for enforcement of Common Law and essentially they were the basis of making Common Law, I am clearly of the view that in the matter where a mandamus can be issued for enforcing statutory obligation to a private body, a civil court has also jurisdiction for issuing mandatory injunction if the conditions for issuing a writ of mandamus are satisfied.
50. In view of the law, laid down by the Apex Court, in Shri Anadi Mukta Sadguru case (supra) a mandamus can be issued for enforcing the statutory obligation even to private body. It is settled preposition that if a substantive law prevents for issuing injunction, the Court will not in exercise of its extraordinary jurisdiction issue a writ to enforce the said injunction. The implied effect of Shri Anadi Mukta Sadguru case (supra) is that the principle of the aforesaid case which accepted the extension of a writ of mandamus to private bodies are also available to the original courts for issuing a mandatory injunction. The case can be examined from another aspect of the matter.
51. In the present case admittedly the Basic Shiksha Adhikari has disapproved the termination of the plaintiffs services under the provisions of Payment of Salaries Act. The Inspector could have issued a direction to the Management of the institution to pay salaries to the plaintiffs. The plaintiffs could have enforced such direction either by way of suit or by initiating any other legal proceedings as the Management was bound to work under the provisions of the statute. In case the plaintiffs instead of filing a suit could have approached the District Inspector of Schools, for issuing direction to the Management, the Inspector having been satisfied that the Management is illegally preventing the plaintiffs to serve in the institution was within his rights to issue such direction as has been held by this court in Bahadur Singh''s case (supra). The plaintiffs should not be denied the said relief merely, since they asserted their rights to get salary and to continue in institution on the basis of regular appointment on the post, seeking a specific relief in the suit as contemplated by Section 39 of the Specific Relief Act.
52. The other aspects which may require consideration in the present matter whether the plaintiffs should have been compensated by granting damages and should the relief of injunction be refused on the said ground this point has very well been considered in the minority judgment in the Executive Committee of the Vaish Degree College. Hon''ble Mr. Justice P. N. Buagwati in his minority judgment held as under :
"Where, in a country like ours, large numbers of people are unemployed and it is extremely difficult to find employment, an employee who is discharged from service may have to remain without means of subsistence for a long period of time. Damages equivalent to one or two months'' wages would be poor consolation to him. They would be wholly insufficient to sustain him during the period of unemployment following upon his discharge. The provision for damages for wrongful termination of the service was adequate at the time when an employee could without difficulty find other employment within the period of reasonable notice for which damages were given to him. But in conditions prevailing in our country damages are a poor substitute for reinstatement; they fall far short of the redress which, the situation requires. To deny reinstatement to an employee by refusing specific performance in such a case would be to throw him to the mercy of the employer ; it would enshrine the power of wealth by recognizing the right of the employer to fire an employee by paying him damages which the employer can afford to throw away but which would be no recompense to the employee."
53. This aspect of the judgment is dealt by Hon''ble Mr. Justice P. N. Bhagwati in his minority judgment has not been contradicted by the majority view in the said decision. The majority view rests simply on the principle of enforcement of personal contract of service and Vaish Degree College''s case has not considered the situation where a relief was sought to be refused on the ground that the plaintiffs are not entitled to injunction as they can be compensated by way of damages.
54. In view of the law laid town by Hon''ble Mr. Justice P. N. Bhagwati, in Vaish Degree College''s case, I am of the view that the damages are no substitute for reinstatement in this country in the prevailing circumstances of the Society. So the argument of denying the relief on the said Court also untenable.
55. On the basis of the aforesaid analysis I am of the view that the plaintiffs were entitled for injunction restraining the defendants from preventing the plaintiffs to work in the institution as Assistant Teacher.
56. An argument has been advanced on behalf of the defendantsrespondents that since after the filing of the suit and the date of the decision of the appeal, the institution has employed other teachers and those teachers have not been impleaded as defendants in the suit. The relief of injunction cannot be granted in view of this development.
57. It is suffice to mention that the plaintiff''s suit was for seeking injunction against the Management of an institution for not appointing any teacher in place of the plaintiffs. The suit of the plaintiff was decreed by the trial court. The courts below have not gone into the said aspect nor the said point has been agitated by the defendants. The suit is still pending in appeal as appeal is a continuation of suit and any appointment made during the pendency of the such suit are always subject to the decision of the suit and the plaintiffs cannot be denied any relief merely on the ground that the defendants by their action have appointed some other teachers in the plaintiff''s place, the right of such teachers appointed during the pendency of the suit are to be governed by the decision of the suit.
58. Accordingly I allow the appeal, set aside the judgment of the District Judge, Ballia dated 191989, passed in Civil Appeal No. 131 of 1985, Committee of Management v. Sachidanand. Dubey. However, keeping in mind that respondents 3 and 4 representing the Management are not saddled undue liability. I modify the decree passed by the trial court as under :
(1) A prohibitory injunction is issued restraining the defendants from interfering with the working of the plaintiffs in the institution on the posts of Assistant Teachers until their services are terminated in accordance with law.
(2) A mandatory injunction be issued against respondent Nos. 5 and 6 to ensure payment to the plaintiffs in accordance with the provisions of Payment of Salaries Act from the date of enforcement of Payment of Salaries Act (U. P. Act No. 6 of 1989) except for the period the salary for the posts on which the plaintiffs were appointed have been paid under the Act to any other teacher appointed in place of plaintiffs during pendency of present litigation.
(3) I further decree the suit of the plaintiffs only for salary against respondents 3 and 4 during which period the respondents 3 and 4 claim to have appointed some other teachers on the posts on which the plaintiffs were appointed but the plaintiffs will not be entitled to decree of more than 3 years salary if this said period exceeds 3 years.
(4) The plaintiffs appellants will be entitled to the costs through out.
