ivil Appeal No 2318 of 1985 From the Judgment and Order dated 1883 of the Gauhati High Court in SA No 19 of 1978
Appellant in person DN Mukherjee for the Respondents
By a quirk of fate the appel lant who was holding a permanent post of Auditor in the Office of the Accountant General Assam resigned his job and took up appointment as a Lecturer in an aided college in Meghalya only to find his appointment terminated in five months  time for want of approval for the appointment by the Director 575 of Public Instruction
The backdrop of events for this appeal are as narrated below
The appellant who was a confirmed Auditor in the Office of the Accountant General Assam responded to an advertise ment in the Assam Tribune dated 21275 and offered himself as a candidate for appointment as a Lecturer in English in Lady Keane Girls College Shillong
Respondents 2 and 3 are respectively the Principal and the President of the Govern ing Body of the said College
After being interviewed along with other candidates on 27375 the appellant was selected for the post and was issued an order of appointment on 7475
The order of appointment however stated that the appointment was subject to the approval of the Director of Public Instruction Meghalya the first respondent herein
On the appellant seeking clarification from the Principal about this condition he was assured that the sanction of approval was a formality and there was no jeopardy to his appointment
Acting on this assurance the appellant resigned his post in the Accountant General s Office and joined the College on 2575
To his shock he received a communication from the Principal on 11975 enclosing a copy of letter of the first respondent dated 28875 informing him that his services would be terminated with effect from 17975
By reason of the appellant s representations the matter was kept in abeyance till 11275 when he received a further communication stating that his services were being terminat ed with immediate effect for want of prior approval of the first respondent
The appellant filed a suit in the Court of the Assist ant District Judge Shillong to challenge the order of termination and sought the reliefs of declaration and perma nent injunction
The trial court granted ad interim injunc tion and later made it absolute and in terms thereof the appellant continued to be in service till 20477 on which date the trial court dismissed the suit and vacated the injunction
The Assistant District Judge held that the appointment of the appellant without prior approval of the Director of Public Instruction was irregular and furthermore the ap pointment contravened the Government s Resolution regarding the reservation of posts for backward sections of the people of the State and that the policy applied to all Government institutions as well as private institutions aided by the Government
The trial court further held that in any event the appellant will not be entitled to a relief of declara tion regarding his continuance in service and that the remedy for the appellant under law if any is to file a suit for damages for wrongful dismissal and seek reliefs
576 The appellant preferred an appeal to the District Judge Shillong
The learned Appellate Judge held that except the oral testimony of the Deputy Director of Public Instruction regarding the Government s reservation policy there was no material on record to show the formation of any such policy and much less that the policy of the Government had been published or even communicated to the aided colleges prior to the appellant being appointed
The learned Judge also held that in the absence of any notification or circular by the Government of Meghalya showing that the Assam Aided Colleges Management Rules 1965 had been adopted it was not possible to hold that the Government had actually adopted the said rules
The Appellate Judge therefore held that the Director of Public Instruction had acted wrongly in refusing to give approval to the appellant s appointment and as such the order of termination of service of the appellant was manifestly wrong
In accordance with such findings the Appellate Judge allowed the appeal and decreed the suit and declared the appellant s continuance in service as a Lectur er in English in the second respondent s college
The judgment and decree of the Appellate Judge was challenged in Second Appeal before the Gauhati High Court by the first respondent
A learned Single Judge of the High Court concurred with the findings of the Appellate Judge and held that the State of Meghalya had not adopted the Assam College Management Rules 1960 at the time of the appel lant s appointment and as such the termination of the serv ices of the appellant was unlawful
However on the question of relief that can be granted to the appellant the learned Judge differed from the view of the Appellate Judge and held that reinstatement of the appellant in service was not possible as the appellant did not belong to one of those categories for which alone reinstatement can be ordered viz 1 Government servants 2 industrial workmen and 3 employees of statutory bodies
The learned Judge therefore held that the appellant would only be entitled to damages for wrongful termination of service
Even then after taking into consideration the unnviable position of the appellant and his continuance in service for about one and half years during the pendency of the suit the learned Judge awarded one year s salary and allowances as damages and disposed of the appeal with the abovesaid modification
It is against this judgment of the High Court the appellant has preferred this appeal
The appellant appeared in person and argued the appeal before us
He contended that neither in the advertisement made by the college authorities nor at the time of the interview nor in the order of 577 appointment was there anything to show that the Government of Meghalya had adopted the Assam Aided College Management Rules 1965 and the Assam Aided College Employees Rules 1960 and as such he had reason to believe that when once the Selection Committee found him suitable for the appointment he would be confirmed in the post of Lecturer after his successful completion of probation
He further stated that he verified from he Principal as to whether his appointment would be disapproved by the first respondent for any reason and he was assured by the Principal that the sanction of approval was only a formality and therefore his appoint ment would not be in jeopardy in any manner
Having regard to all these factors he resigned his permanent post in the office of the Accountant General Assam and had devoted himself fully to his task as a Lecturer in the college
Therefore it was a rude shock to him when he was issued an order of termination of service on the ground that the first respondent had not approved the appointment
It was also urged by him that he had established in the trial of the suit that his was the first case where approval was not given and that there had been no previous instance of denial of approval of appointments made in any of the aided col leges in the State of Meghalya
The appellant laid stress on the fact that the Appellate Court as well as High Court have both sustained his contentions and held that his appointment had not been made in contravention of any of the rules framed by the Government and as such the refusal of the first respondent to approve his appointment was wrong and the termination of his service was illegal
The further submission of the appellant was that since the Appellate Court and the High Court have found the termination of his service to be wrong and illegal he should have been granted the relief sought for in the suit viz a declaration that he continued to be in service all along and that he was enti tled to reinstatement with full back pay and allowances
The appellant also contended that though the Lady Keane Girls College is a private institution it was being provided aid by the Government and Government had full supervisory con trol over it and as such the college is for all practical purposes a Government institution and in such circumstances he is entitled to parity of treatment with a Government servant wrongly removed from service
The prayer of the appellant therefore was that he should be granted a decla ration regarding his continuance in service so as to entitle him to all the benefits ensuing from such a declaration viz reinstatement in service together with back pay allowance and other benefits
Opposing the arguments of the appellant the learned counsel for the first respondent argued that the Lady Keane Girls College is a 578 private institution and not a Government institution that merely because it receives aid from the Government and the appointments made by the Management are subject to the approval of the first respondent the college would not become a Government institution nor can the appellant claim parity of treatment with Government servants
The learned counsel also stated that in spite of the findings of the Appellate Court and the High Court that the termination of service of the appellant was wrongful the only remedy for the appellant is to file a suit and not to seek a declara tion of continuance in service because it would amount to seeking specific performance of a contract of service
We have bestowed our anxious consideration to the argu ments advanced by the appellant because of the misfortune that has overtaken him partly due to his own hasty action in resigning his permanent post and partly on account of the first respondent disapproving the appellant s appointment on the basis of rules which had not been formulated and commu nicated to the aided colleges
On an examination we find that in spite of the sad plight of the appellant it will not be possible to grant him a relief of declaration as sought for by him
The reasons for our view may now be set out
The legal status of an employee in a privately managed college and whether a contract for personal service can be specifically enforced came up for consideration before this Court in Vaish College vs Lakshmi Narain 1976 2 SCR 1006
The facts in that case were as follows
Vaish Degree College which was registered under the Registration of Cooperative Societies Act was initial affiliated to the Agra University and later to the Meerut University
A Principal of the college who was appointed after obtaining formal approval of the Vice Chancellor was terminated from service about two years later
The Principal challenged the order of termination in a suit filed by him on various grounds and he sought for a declaration regarding his continuous in serv ice
The trial court dismissed the suit but the Appellate Court decreed the same
In the second appeal there was a reference to a Full Bench regarding the jurisdiction of the civil court to entertain the suit and eventually the second appeal filed by the management was dismissed and the manage ment came up in appeal to this Court by special leave
This Court held that the Executive Committee of the college was not a statutory body because it had not been created by or under the statute and did not owe its existence to a stat ute
But on the contrary it was a body which came into existence on its own and was only governed by certain statu tory provisions for the proper mainte 579 nance and administration of the institution
The Court summed up the law in the following words It is therefore clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute
In other words the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountain head of its powers
The question in such cases to be asked is if there is no statute would the institution have any legal existence
If the answer is in the negative then undoubtedly it is a statutory body but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statu tory provisions it cannot be said to be a statutory body
The High Court in our opin ion was in error in holding that merely because the Executive Committee followed certain statutory provisions of the University Act or the statutes made thereunder it must be deemed to be a statutory body
 The Court then proceeded to consider the next question regarding a contract of personal service being specifically enforceable
After referring to the decisions in SR Tewari vs District Board Agra  Anr   59 Execu tive Committee of UP State Warehousing Corporation Ltd vs Chandra Kiran Tyagi   265 Bank of Baroda vs Jewan Lal Mehrotra  55 and Sirsi Municipality vs Kom Francis   the Court held as follows On a consideration of the authorities men tioned 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 3 11 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 580 statutory body acts in breach of violation of the mandatory provisions of the statute
 The matter again came to be considered in the case of J Tewari vs Jwala Devi Vidya Mandir  Others In that case the appellant Smt
J Tewari was appointed as the Headmistress of the Jwala Devi Vidya Mandir Kanpur which was a Society registered under the Societies Registra tion Act 1860
J Tewari who later became the Princi pal of the institution challenged her order of suspension in an earlier suit and her order of termination from service in a later suit
The second suit was partly decreed by the trial judge and he upheld that the termination of service of Mrs J Tewari was not legal and awarded her a sum of Rs 15250 as arrears of pay for a period of 3 years together with interest and provident fund contribution
The High Court confirmed the decree but held that the sum awarded to her should be by way of damages and not towards arrears of salary since Smt
J Tewari will not be entitled to a decla ration that she continued to be in the service of the insti tution and to a consequent order of reinstatement
In fur ther appeal to this Court by certificate it was contended that the institution was a statutory body and that Smt
J Tewari was entitled to a declaration regarding her continu ance in service
This Court repelled the contention and held that the Vidya Mandir in spite of being governed by the University regulations and the provisions of the Education Code framed by the State Government and also being aided by educational grants still constituted only a private insti tution and as such Smt
J Tewari would only be entitled to a decree for damages if her dismissal was wrongful and not to an order of reinstatement or a declaration that notwith standing the termination of her services she continued to be in service
The law enunciated in these decisions stand fully at tracted to this case also
Even though the Lady Keane Girls College may be governed by the statutes of the University and the Education Code framed by the Government of Meghalya and even though the college may be receiving financial aid from the Government it would not be a statutory body because it has not been created by any statute and its existence is not dependent upon any statutory provision
The appellant however placed reliance on another decision of this Court in IR Gupta vs Inter College Thora  In that case Shri IP Gupta who was appointed as Principal of the college on probation for one year was placed on further probation for one more year
During the period of the extended probation his services 581 were terminated
Although the order of termination was innocuous in its terms it was accompanied by an enclosure containing the resolution of the Managing Committee with a reference therein to an adverse report given by the Manager against the Principal
It was therefore contended that the order of termination cast a stigma on the Principal and hence his services ought not to have been terminated without due notice and enquiry
It was this contention which was the principal issue in that case
Dealing with that contention this Court found that the college was an institution recog nised under the Intermediate Education Act and was governed by the provisions of the Act and the regulations made there under and that Regulations 35 to 38 prescribed the procedure to be followed before the services of an employee can be terminated by way of punishment
The management however did not follow the procedure prescribed by the regulations which were virtually the same as provided by Article 3112 of the Constitution
This Court therefore held that the principles which should govern the case should be the same as those underlying Article 3112
It was in that view of the matter this Court allowed the appeal and restored the judgment of the Single Judge of the High Court declaring that the appellant contained to be in the service of the college and that he was entitled to all the benefits flowing from the declaration including the salary and allowances as if there was no break in his service
The facts of the abovesaid case are clearly distinguishable because the case pertained to termination of service by way of disciplinary action
In the instant case there is no such violation of the provisions of any Act or any Regulations made thereun der
This is a case where the first respondent had proceeded on the erroneous assumption that the Assam Aided College Employees Rules 1960 and the Assam Aided College Management Rules 1965 had been adopted by the State of Meghalya and therefore the appellant s appointment was in contravention of the rules and consequently he should decline to approve the appointment of the appellant
No doubt his action has been held to be wrongful but even so it is not in contraven tion of any statutory provisions or regulations or procedur al rules
We are therefore unable to accept the appel lant s contention that he should be granted a declaration that he continues to be in the service of the college and that he is entitled to all the benefits flowing from the declaration
Notwithstanding this conclusion we feel that the pecul iar facts of the case which are indeed distressing call for some relief being given to the appellant instead of a brusque dismissal of the appeal on account of the legal impediments for granting the relief of declaration of his continuance in service
We have already set out the tragic situa 582 tion that has resulted on account of the appellant s serv ices being terminated after he had closed his options to revert back to his service in the Accountant General s Office
The trial court which dismissed the suit and the High Court which has modified the decree of the Appellate Court have also noticed this position and expressed their compassion for the appellant
It was on account of that the High Court has granted monetary compensation of one year s salary to the appellant as damages
We think that in the fact and circumstances of the case and in exercise of our powers under Article 136 of the Constitution we should enlarge the relief granted to the appellant by the High Court by directing the State of Meghalya represented by the first respondent to grant 3 years  salary and allowances to the appellant at the rates prevalent when his services were terminated on 11275
Though the appellant had remained in service till 20477 in spite of the termination order the salary payable for that period is towards the services actually rendered by him in the college
Hence no portion of that amount can be treated as damages
If the appellant has not been paid the salary and allowances for any portion of the period between 11275 to 20477 the first respondent is further directed to release such sums of money as would be required to make good the unpaid salary and allowances
We give this direction because we find a letter in the paper book written by the second respondent stating that they are unable to pay the salary and allowances due to the appellant on account of non release of funds by the first respondent
The first respondent will make the payments indicated above on or before 30th June 1987
The grant of this relief will be in consonance with the reliefs granted by this Court to the affected parties in Vaish College case supra and Smt
J Tewari s case supra
In the former case the Principal whose services were terminated was allowed to retain a total sum of Rs21100 deposited by the Educational Institution under orders of court during the pendency of the proceed ings
In the latter case Smt
J Tewari had been granted 3 years  salary by way of damages
In addition to the payment of the abovesaid sums we also direct that in the event of there being a vacancy in the Lady Keane Girls College for the post of Lecturer in English and in the event of the Management willing to appoint the appellant as a Lecturer once again the Management should be permitted to do so by the first respondent by granting relaxation of rules and regulations currently in force governing the filling up of posts of Lecturers in aided colleges in the State of Megha lya
To the extent additional reliefs are given to the appellant the appeal will stand allowed
The appellant will be entitled to costs in the appeal payable by the first respondent
PSS Appeal allowed


Summary:
The appellant who was holding a permanent post in a Central Government department was selected for the post of Lecturer in a private aided college in Meghalya
The order of appointment stated that it was subject to the approval of the first respondent
On his seeking clarification from the Principal he was assured that the approval was a mere for mality
Acting on the said assurance the appellant resigned his permanent post in the Government department and joined the college
However he found his services terminated just within five months for want of prior approval of the first respondent
A suit filed by the appellant challenging the order of termination and for a declaration and permanent injunction was dismissed by the trial court
The first Appellate Court found that the Assam Aided Colleges Management Rules 1965 had not been adopted by the State Government at the time of the appellant s appointment and that the Director of Public Instruction had acted wrongly in refusing to give approval to the appellant s appointment and as such the order of termination of service of the appellant was manifestly wrong
It therefore declared appellant s continuance in service
The High Court while concurring with the view of the first Appellate Court that the termination of services of the appellant was unlawful awarded one year s salary and allowances as damages since the 573 appellant did not belong to the category of either Govern ment servants industrial workmen or employees of statutory bodies for which alone reinstatement could be ordered
In this appeal by special leave it was contended for the appellant that the Appellate Court and the High Court having found the termination of service to be wrong and illegal he should have been granted the relief sought for in the suit that is a declaration of continuance in service and rein statement with full back wages and allowances
It was fur ther submitted that since the college was a private institu tion provided and by the Government and Government had full supervisory control over it it was for all practical pur poses a Government institution
As such he was entitled to parity of treatment with a Government servant wrongly re moved from service
For the respondent it was contended that the only remedy for the appellant was to file a suit for damages and not to seek a declaration of continuance in service because it would amount to seeking specific per formance of a contract of service
Allowing the Appeal in part the Court HELD The appellant was not entitled to a declaration that he continued to be in the service of the college and that he was entitled to all the benefits flowing from the declaration
581G Even though the College in question may be governed by the statutes of the University and the Education Code framed by the Government of Meghalaya and even though the college may be receiving financial aid from the Government it would not be a statutory body because it haS not been created by any statute and its existence is not dependent upon any statutory provision
580F G Vaish College vs Lakshmi Narain  and J Tewari vs Jwala Devi Vidya Mandir  Others  referred to
There was no violation of the provisions of any Act or any Regulations made thereunder in the instant case
The first respondent in declining to approve the appointment of the appellant had proceeded on the erroneous assumption that the Assam Aided College Employees Rules 1960 and the Assam Aided College Management Rules 1965 had been adopted by the State of Meghalya
No doubt such action has been held to be wrongful but even so it was not in contravention of any 574 statutory provisions or regulations or procedural rules
581E G IP Gupta vs Inter College Thora   distinguished
The misfortune that has overtaken the appellant was partly due to his own hasty action in resigning his perma nent post and partly on account of the first respondent disapproving the appellant s appointment on the basis of rules which had not been formulated and communicated to the aided colleges
In spite of the sad plight of the appellant therefore it will not be possible to grant the relief of declaration as sought for by him578C D In the facts and circumstances of the case and in exercise of its powers under Article 136 of the Constitu tion the Court enlarged the relief grunted to the appellant by the High Court by directing the State of Meghalaya to grant three years salary and allowances to the appellant at the rates prevalent when his services were terminated
It further directed that in the event of there being a vacancy in the College in question for the post of Lecturer in English and in the event of the Management willing to appoint him as Lecturer once again the Management should be permitted to do so by granting relaxation of rules and regulations