ivil Appeal No 917 of 1989 etc
From the Judgment and Order dated 15121988 of the Allahabad High Court in CMWP No 10059 of 1987
Yogeshwar Prasad Satish Chandra Mrs section Dixit and Mukul Mudgal for the Appellants
453 AK Srivastava for the Respondents
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
This is the third time the matter is coming before this Court and we hope that this is the last of a series of litigations between the parties
We have been helpfully provided with a chronology of the events leading up to this appeal
It is important that the chronology is made clear
It is as follows At Allahabad there is a private college called Kulb haskar Ashram Agriculture Intermediate College
It is run by the Kayastha Pathshala which is a society registered under the Societies Registration Act
Rajendra Prasad the common respondent in the appeals was a Chemistry lecturer in that College
He was appointed on 15 July 1962 in the scale of Rs 175 10 2 15
On 20 June 1963 the management wrote to him stating that his services would not be required after 15 July  1963
It was indeed a termination letter
The respondent moved the Civil Court with suit No 4221963 for permanent injunction restraining the management from inter fering with his teaching work
The management resisted the suit inter alia contending that the respondent was appoint ed only for one year
He was removed after the period of probation since his work was found to be unsatisfactory
It was also contended that no injunction could be granted for enforcement of the contract of personal service and the suit was not maintainable
On 20 May 1964 the Trial Court dis missed the suit as not maintainable
It was also held that the suit had become infructuous since the management had withdrawn the impugned communication
It seems that the management had withdrawn its earlier communication only to make another order
On 28 August 1964 the respondent was placed under suspension and he again approached the Civil Court for relief
He instituted suit No 198 of 1964 in the Munsif Court seeking a declaration that the order of suspension was illegal
The trial court dismissed the suit but the appeal therefrom FA No 5831965 was allowed by the First Additional Civil Judge Allahabad decreeing the suit as prayed for
That decision was affirmed by the High Court in Second Appeal No 1111 of 1966
The High Court rendered the judgment on 9 April 1968
Before the disposal of the appeal by the High Court the manage 454 ment made a fresh order suspending the respondent pending enquiry on certain allegations That order was issued on 30 December 19657 January 1966
This order was also the sub ject matter of a suit
The respondent filed Civil Suit No 48 of 1966 in the Munsif Court at Allahabad challenging the competency of the managing committee to take action against him
He also contended that the prior approval of District Inspector of Schools DIOS was not taken for placing him under suspension The Munsif Court accepted the suit and declared that the suspension order was illegal and void
But the management successfully took up the matter of Civil Appeal No 117 of 1969 before the Additional Civil Judge
The appeal was allowed reversing the trial court decree and upholding the respondent s suspension
The respondent pre ferred second appeal to the High Court and it was numbered as SA No 2038 of 1970
We may stop here for a moment and refer to some other events
During the pendency of the said second appeal in the High Court the UP Secondary Education Laws Amendment Act 1976 was brought into force with effect from 18 August 1976
The provisions thereunder required the management of the college to take prior approval of DIDS for taking any action against teaching staff
The respondent took advantage of those provisions and made an application for amendment of his plaint to incorporate additional paragraphs 13 A and 14g
In the additional paragraphs he challenged the validity of the suspension order since management did not take prior permission of the DIOS
It was alleged that the suspension order became invalid and inoperative on the expiry of 60 days from the date of service
The State of Uttar Pradesh was not a party to the original suit
For the first time on 31 October 1980 the respondent made an application for impleading the State of UP and DIOS as supplemental respondents to the appeal
Their impleading was perhaps necessitated in view of the liability of the State Government to pay salaries to teach ers under the UP High School and Intermediate College Payment of Salaries of Teachers and Other employees Act 1971
Section 101 of the Act provides that the State Government shall be liable to payment of salaries of teach ers and employees of every institution due in respect of any period after March 31 1971
The High Court did not consider it necessary to allow the said amendment of the plaint
But the respondent suc ceeded in this Court
By order dated 20 April 1980 the Court allowed his appeal and 455 directed the High Court to allow the amendment
The second appeal No 2038 of 1970 thus fell for consideration in the light of fresh points raised in the amplified plaint
Next as to proximity there is one other related liti gation between the same parties
It is now necessary to refer to it
The respondent filed a suit for recovery of arrears of salary past pendente lite and future
It was claimed for the period between 21 February 1964 and 20 February 1967
That suit was filed in 1968 and registered as Civil suit No 53 of 1968
On 31 July 1969 the trial court decreed the suit for Rs781292 being the arrears of salary for the period of three years
The management of the college appealed to the District Court in Civil Appeal No 268 of 1969
The respondent filed a cross objection to the extent of the relief denied to him
The second appeal No 2038 of 1970 was then pending in the High Court
It seems that the parties moved the High Court for withdrawal of CA No 268 of 1969 from the District Court for being disposed of along with the second appeal No 2038 of 1970
That request was allowed and the said appeal was withdrawn
It was renumbered by the High Court as First Appeal No 450 of 1982
The High Court disposed of both the said appeals by common judgment dated 22 October 1982
The second appeal No 2038 of 1970 was dismissed confirming the finding of the Additional Civil Judge as to the validity of the suspension order
The first appeal No 450 of 1982 was allowed revers ing the decree of the trial court and dismissing the re spondent s suit for arrears of salary
His claim for pen dente lite salary also vanished along with that
The respondent stopped into this Court for the second time
Being aggrieved by the decision of the High Court he appealed to this Court in CA No 5891 of 1983
The appeal was allowed by a brief order dated 25 September 1986 which has since been reported in AIR 1987 SC 1644
For immediate reference we may set out the same hereunder The High Court in the judgment recorded the following findings The result is as noticed above that al though it cannot be said that the order dated 30 December 19657 January 1966 suspending the plaintiff from service of the defendant col lege was illegal or null and void inoperative against the 456 plaintiff from its inception it did cease to be operative with effect from 17 October 1975 on the expiry of 60 days from the commencement of the UP Secondary Education Laws Amend ment Act 1975
Having recorded this finding the High Court refused to exercise its discretion to grant a declaration that the order of suspension ceased to be operative with effect from 17 October 1975
We think that the High Court was wrong in refusing to grant the declaration
We therefore declare that the order of suspension ceased to be operative with effect from 17 October 1975
The appeal against the judgment of the High Court in second appeal No 2038 of 1970 is disposed of accordingly
In the appeal against the judgment of the High Court in First Appeal No 450 of 1982 we do not see how the appellant can be denied his salary for the period between 20 February 1964 to 15 January 1966 the date on which the effective order of suspension was communicated to him
Instead of sending the case back to the trial court for determining the amount we think that a decree may straight away be passed for a sum of Rs 10000 which will include salary for the period interest up to date and costs With due apologies for this lengthy introduction we then come to the proceeding out of which the present appeals arise
On 18 May 1986 the respondent moved the High Court under Article 226 of the Constitution seeking a writ of Mandamus against the State of UP and management of the college for his reinstatement in service with payment of entire arrears of salary
He rested his case on the afore said decision
This High Court accepted the writ petition and gave him all the reliefs asked for
As to the validity of suspension order the High Court remarked The order of suspension being illegal was correctly set aside by the Supreme Court after the enforcement of UP Secondary Education Laws Amendment Act 1975 as none of the conditions mentioned in sub section 5 of Section 16 G of the Act were fulfilled as no charges were framed against the petitioner nor any charge sheet was served on him   
The petitioner there fore 457 could not have been suspended and the order of suspension in our view was void ab initio
Under law there was no provision to keep the petitioner under suspension for more than 21 years without enquiry being held and without any charge sheet being submitted
The peti tioner has a legal right to continue in serv ice and we direct him to be reinstated forth with
 As regards the arrears of salary the High Court observed Once the order of suspension ceased to be operative and was ab initio void from its very inception the petitioner shall be deemed to be in continuous service
That application of the petitioner was sent to State of UP through the Education Secretary and also the District Inspector of Schools
The District Inspector of Schools has already sent a letter dated 71 1987 Annx 28 to the Manager Kulbhaskar Ashram Agriculture Intermediate College Allahabad about the payment of ar rears of salary to the petitioner
But the Manager and the State of UP do not seem to be interested in making payment of arrears of salary to the petitioner
We are accordingly of the opinion that the petitioner has made out a case for issuance of a writ of mandamus directing the State of UP and the District Inspector of Schools Allahabad to make pay ment of arrears of salary to the petitioner in view of Section 10 and prior to that date the arrears of pay and other emoluments would be payable by the institution
In case the insti tution fails to make payment the procedure under Section 11 of the Payment of Salaries Act may be adopted
 Finally the High Court issued the following directions In view of the premises aforesaid the present petition succeeds and is allowed Respondents Nos 1 and 2 the State of Uttar Pradesh and the District Inspector of Schools Allahabad are directed to make payment of salary to the petitioner since 1611966 till date forthwith including DA and other emoluments admissible under law of course after deducting the amount if any paid to him as subsistence allowance during the period of his suspension
We further add that the petitioner shall be reinstated forthwith and shall be paid his salary regularly in accord ance 458 with the provisions of Section 3 of the Pay ment of Salaries Act 1971
 Challenging the judgment of the High Court the management as well as State Government by obtaining leave have now appealed
This how the matter is coming before the Court for the third time
The first question for consideration is whether the High Court was justified in directing reinstatement of the re spondent There is a long established rule of Courts that service contract cannot be specifically enforced
There are however three exceptions which have been adverted to in very many cases
In Vaish Degree College vs Lakshmi Narain at 71 after examining a large vs number of authorities like SR Tiwari vs District Board Agra and Anr   59 The Executive Committee of UP Warehousing Corporaon Ltd vs Chandra Kiran Tyagi  265 Bank of Baroda vs Jewan Lal Mehrotra and Sirsi Municipality vs Kom Francis  the Court rounded off the conclusion On consideration of the authorities mentioned above it is therefore clear that a contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contract subsists and the employee even after having been removed from service can be deemed to be in service against the will and consent of the employer
This rule however is subject to three well recognised exceptions i where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India ii where a worker is sought to be reinstated on being dismissed under the Industrial Law and iii where a statutory body acts in breach or violation of the mandatory provisions of the Statute
This decision has been affirmed in Smt
J Tiwari vs Smt
Jawala Devi Vidya Mandir and Ors and reiterated in Deepak Kumar Biswas vs The Director of Public Instructions and adverted to in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvaran Jayanti Mahotsav Samarak Trust and Ors
vs VR Rudani and Ors  at 697
These authorities say that a college owned by a private body though recognised by or affiliated to a Statu tory University will not become a statutory body 459 since not enacted by or under a statute
And the dismissed employee of such institution cannot get specific performance of service contract The submission for the respondent however was that the present case stands on a different footing since there was no repudiation of the respondent s contract of service
The contract of service according to him is still subsisting and it was therefore not inappropriate for the High Court to put the respondent back into service
But counsel for the appellants added that the respondent himself has abandoned his post after he was suspended and there was therefore no need to terminate his service
The declaration made by the respondent when he enrolled himself as an advocate in 1968 stating that he was not employed nor engaged in any business or profession was relied upon to support the submission
It is said that the law required that the respondent at the time enrolment must have given particulars of his employment or of his business or trade it he had one
He must have also produced a character certificate from the employer and proved as to how the employment came to an end
Since he did not furnish any such particulars counsel urged that it was a clear case of abandonment of service and no specific order of termination was necessary
Much could be said on both the contentions but we refrain from expressing any opinion since this is not a proper case for reinstatement
Indeed the reinstatement would be an unwise move from any point of view
In educa tional institutions the Court cannot focus only on the individual forgetting all else
The Court must have regard to varying circumstances in the academic atmosphere and radically changed position of the individual sought to be reinstated
The Court must have regard to interests of students as well as the institution
It is not unimportant to note that the respondent was out of teaching for over 25 years
He seems to have taught Chemistry for one or two years in 1962 and 1963
Thereafter he did not teach Chemis try at any time in any College
In 1964 65 he diverted his attention and sought admission in LLB Degree Course
In 1968 he enrolled himself as an advocate and since then concentrated only in law courts
In this gap of twenty five years he must have clearly lost touch with Chemistry as well as art of teaching
It must have been also deeply buried and disintegrated under the new acquisition of his legal knowl edge
Reinstatement of such a person seems to be unjustified and uncalled for
The next question for consideration is whether the respondent is entitled to damages or salary as ordered by the High Court and if so what should be the measure for determination Counsel for the appel 460 lants urged that the respondent s claim for salary was the subject matter of previous litigation which finally ended with a decree by this Court in CA No 5891 of 1983 and it was a final settlement of all his claims
It was also argued that in any event the respondent is not entitled to damages or salary for more than three years
Our attention was drawn to the decision in Tilok chand Motichand  Ors
vs B Munshi  Anr In reply and in support of the High Court order counsel for the respondent referred to us a number of decisions and in particular i Malmoona Khatun and Anr
vs State of UP  Anr
   ii Managing Director Uttar Pradesh Warehousing Corporation and Anr
vs Vinay Narain Vajpayee  and iii Maharaja Sayajirao University of Baroda and Ors
vs RS Thakur AIR 1969 SC 2112
We have read cases carefully but it is not necessary to refer to them in detail when we have guidance from binding precedents in similar cases
There is a triology of cases on the question See i The Vaish Degree College ii Smt
J Tiwari and iii Deepak Kumar Biswas to which brief reference was made earlier
in the first of the three cases the institution concerned was a degree college managed by a registered co operative society
The dismissed Principal of the College filed a suit for reinstatement inter alia contending that the management of the college though a society registered under the cooperative societies Act was a statutory body since affiliated to the Agra University and subsequently to Meerut University
It was contended that the Principal s termination was in violation of statutory obligation of the society and therefore his reinstatement should be ordered
But that contention was not accepted and the Court said at 74 75 That the plaintiffrespondent served the institution for a short period of two years only ie from 1964 to 1966 and thereafter he was bereft of all his powers and did not work in the college for a single day
2 That if the declaration sought for or the injunction is granted to the plaintiffre spondent the result would be that he would have to be paid his full salary with interest and provident fund for full nine years ie from 1966 to 1975 even though he had not worked in the institution for a single day during this period
461 3 That consequent upon the declaration the appellant would have to pay a very huge amount running into a lakh of rupees or perhaps more as a result of which the appellant and the institution would perhaps be completely wiped out and this would undoubtedly work serious injustice to the appellant because it is likely to destroy its very existence
4 It is true that the plaintiffre spondent is not at faultbut the stark reali ties hard facts and extreme hardship of the case speak of themselves
And said It appears but by virtue of the interlocutory orders passed by this Court the appellant has already deposited Rs9000 before the High Court which was to be withdrawn by the re spondent after giving security and a further sum of Rs9100 being the salary of 13 months has also been deposited by the appellant before the trial court under the orders of this Court
It is also stated by Counsel for the appellant that the appellant has deposited Rs3000 more
We feel that in the circum stances the respondent may be permitted to keep these amounts with him and he will not be required to refund the same to the appellant
The amount of deposit in the High Court if not withdrawn by the respondent may now be withdrawn by him without any security and if he has already withdrawn the amount he will be discharged from the security
This will vindi cate the stand of the respondent and compen sate him for any hardship that may have been caused to him by the order terminating his services and will also put a stamp of finali ty to any further litigation between the parties
 The case of Smt
J Tiwari seems to be closer to the case before us
There the appellant claimed arrears of salary for six years covered by the period of suspension from 1952 till 1958
In January 1952 she filed a suit in the court of Munsif challenging her suspension which was later withdrawn by the High Court of Allahabad for trial by it self
The High Court decreed the suit holding that the order of suspension was not made by a properly constituted Commit tee
On 24 May 1958 her services were terminated by the management of the college with retrospective effect from the date of suspension
On 28 August 1958 she filed a suit for a declaration that she continued in the service and 462 for setting aside the termination order
She claimed a decree in a sum of Rs3765740 by way of salary
The trial court upheld her contention that the termination of service was bad and ineffective
The trial Court however passed a decree in her favour in the sum of Rs 15250 as arrears of pay for a period of 3 years from August 1 1955 to July 31 1958
Both the parties filed appeals before the High Court
The Division Bench of the High Court partly allowed the appeal of the management and dismissed the appeal of Smt
J Tiwari
The High Court took the view that though the dis missal was wrongful she was entitled to a decree of damages only and not to a declaration that she still continued to be in the service of the management
The High Court upheld the money decree passed by the trial court but did so on the ground that the amount awarded by the trial court by way of arrears of salary could justifiably be granted to her by way of damages
This Court while affirming the decree of the High Court has however said as follows at p 162 The High Court has treated the claim for three years  arrears of salary as being pay able to the appellant on account of damages
But that is not a right approach to the prob lem
The appellant is entitled to three years  arrears of salary for the period of suspension since the order of suspension was without jurisdiction and until May 1958 no order of termination of her service was passed by the Society
In addition to the arrears of three years  salary the appellant would be entitled to three months  salary as provided for by clause 10 of the agreement
We would like to add that even if the appel lant could be held to be entitled to a decla ration that she continued to be in the service of respondent 1 this is not a proper case in which such a declaration should be granted to her
The appellant s claim according to her counsel would amount to over Rs2 lakhs
The appellant has admitted in her evidence that she did not make any attempt to mitigate the damages by trying to obtain an alternative employment during the last 20 years
The difficulty of obtaining employment is an argument which cannot be permitted to a person who on her own showing has made no effort to obtain any employment Deepak Kumar Biswas case appears to be the closest to the present case
There the appellant was a Lecturer in English in Lady Keane 463 Girls College Shillong
The college was governed by the statutes of the Meghalaya University and the Education Code framed by the State Government
The college was also receiv ing financial aid from the Government
His appointment was terminated for want of approval by the Director of Public Instruction
The trial court decreed the suit for declara tion and permanent injunction
The appellate Court set aside that decree and granted monetary compensation of one year salary as damages although his removal was found to be wrongful
This Court sustained the removal but enhanced the compensation to three years  salary following the pattern adopted in the aforesaid two cases
What do we have here In 1962 the respondent was ap pointed as a Chemistry lecturer in the scale of Rs 175 10 215
His performance was found to be unsatisfactory
In August 1964 he was placed under suspension
In January 1966 he was again suspended
Thereafter he brought suit after suit appeal after appeal from the lowest court to the Apex Court
He continued the litigation for about 25 years
On 17 March 1976 the management had appointed Dr Gopendra Kumar as Chemistry Lecturer and his appointment was approved by the DIOS
On 28 October 1982 the management passed a resolution confirming his appointment wef 27 September 1975
That was also approved by the DIOS
Dr Gopendra Kumar was not a party to any one of the earlier litigations nor to the present appeal
The respondent knew very well that his service contract was with the private management
In 1964 itself learned Munsif while dismissing the first suit No 4221963 has held that his contract of employment could not specifically be enforced
He was then obliged to place his services on the market to mitigate the damages
But he did nothing of the kind
In 1968 he joined legal profession and he is still not out of it
He has not disclosed his professional income
In fairness he ought to have disclosed his income to the Court since it is in his personal knowledge
Instead he seems to have urged before the High Court that the professional income is not relevant for consideration
The High Court while accepting the submission went a step further and observed that joining the legal fraternity can never be said to be employment and could not disentitle the respond ent to claim his arrears of salary
 Legal profession may not be considered as an employment but the income from profession or avocation if not negligible can not be ignored while determining damages or back wages for payment
It must also be taken into consideration
In SM Saiyad vs Baroda Municipal Corporation Baroda 1984 Supp SCC 378 the Court gave deduction of even a small income of Rs 150 per month 464 earned by the worker turned advocate while awarding back wages upon reinstatement
But we cannot accept the contention for the appellants that the sum of Rs 10000 decreed in favour of the respond ent in Civil Appeal No 5891 of 1983 was a final settlement of all his claims
There is no indication in the order of this Court to that effect
In the light of all these facts and circumstances and the authorities to which we have called attention it seems to us that it would be sufficient if the respondent is given salary for three years on account of damages
In the result the appeals are allowed and in reversal of the judgment of the High Court we direct that the re spondent be paid three years salary
The payment shall be treated as a final settlement of all his claims
The payment shall be made by the management and not by Government
In a case like this the Government cannot be saddled with the liability to make payment
There is no relationship of master and servant between Government and respondent and such relationship existed only between the management and respondent
So far as statutory liability to pay salary to teachers is concerned the Government has been paying salary to Dr Gopendra who has since been appointed as Lecturer in the place of respondent
Therefore the Management alone should pay the amount ordered
The payment shall be made within four weeks
In the circumstances of the case we make no order as to costs
Y Lal Appeals al lowed


Summary:
Under item 14 of Second Schedule to the Andhra Pradesh General Sales Tax Act 1957 tamarind was subjected to sales tax at the point of first purchase in the State irrespective of whether it was purchased within the State or outside the State
However by virtue of an amendment to the Act by Act 19 of 1986 tamarind which is purchased within the State was retained in Second Schedule while tamarind purchased out side the State was transferred to First Schedule as item 170 making it taxable at the same rate at the point of first sale in the State
The appellants had purchased tamarind from the State of Orissa paying tax there and incurred expenditure in bringing it to Andhra Pradesh for sale
They challenged the said amendment modifying the point of taxability as discriminato ry between tamarind produced and purchased within the State and the tamarind produced and purchased outside the State and as such violative of Articles 304a and 14 of the Constitution
The submission was that imported tamarind which had suffered tax at the first sale point will again be taxed at the purchase point when purchased within the State which would amount to double taxation and that tax in case of imported tamarind would be more because its price will include freight charges and other State taxes
The High Court found that there was no discrimination
Dismissing the appeal by special leave the Court 423 HELD When a taxing State is not imposing rates of tax on imported goods different from rates of tax on goods manufactured or produced Article 304 of the Constitution has no application
In the instant case both tamarind purchased within and outside the State was taxed uniform ly
There was
therefore no infraction of clause a of Article 304 of the Constitution
429D E 426A 425G H Rattan Lal  Co  Anr
vs The Assessing Authority  Anr
   applied
Firm ATB Mehtao Majid  Co vs The State of Madras 14 STC 355 and Indian Cement Ltd  Ors
vs State of Andhra Pradesh  Ors 69 STC 305 distinguished
It may be that when the rate is applied the resulting tax in respect of imported tamarind may be somewhat higher because its price will include freight charges and other State taxes
But that cannot be said to be the effect of what law has amended
Tamarind will be imported only when it can be sold in the market at the same price as the tamarind produced within the State
Only when after bearing the other State taxes and freight charges if it is able to compete with the locally produced tamarind it will normally be imported from outside the State
If there is any difference in prices because of market conditions and other factors that cannot be said to be due to discrimination prohibited by clause a of Article 304
429E 427D E Ms Associated Tanners Vizianagaram AP vs CTO Vizianagaram AP  Ors   referred to
Weston Electroniks  Anr
vs State of Gujarat  Ant
   distinguished
Once the imported tamarind is taxed at the first sale point under the First Schedule there is no occasion for taxing it over again at the sale point under the Second Schedule
The idea of both the Schedules is to tax only at one point though the point of taxability is different in both the cases
In case of tamarind purchased within the State ie produced within the State the tax is levied at the point of first purchase under the Second Schedule and in case of imported tamarind ie purchased outside the State the tax is levied at the point of first sale in the State under the First Schedule
It could not therefore be said that taxing the imported tamarind at the point of first sale in the State would amount to double taxation
427H 428A 427B C 427G 424 In the facts and circumstances of the case there was therefore no ground to complain about the breach of Article 14 of the Constitution 429E F