JUDGMENT [ENTITY], J.
1. In the instant petition, petitioner has challenged the impugned orders dated 4.6.1[SECTION]80, 27.[SECTION].1[SECTION]80, 4.5.1[SECTION]83 and 22.4.1[SECTION]87 contained in [SECTION], [SECTION] and [SECTION] to the petition, by which the petitioner has been removed from service and his appeal, revision etc. have been dismissed. Before proceeding further, it may be pointed out here that petitioner has sought quashing the impugned order dt. 27.[SECTION].1[SECTION]80, which had not been filed by the petitioner and the same had been filed by the respondents alongwith their reply to the petition as Annex. R/[SECTION].
2. Petitioner was appointed as a clerk on 1.3.1[SECTION]72 with Rajasthan [ENTITY]. There has been some break in service and he was again appointed on Jan. 24, 1[SECTION]78 as is evident from Annex. R/1 filed alongwith the reply to the petition. Petitioner proceeded on leave just after filing the application in anticipation of sanction of leave and remained absent from 1.3.1[SECTION]80 to 15.3.1[SECTION]80, 18.3.1[SECTION]80 to 30.3.1[SECTION]80, 1.4.1[SECTION]80 to 30.4.1[SECTION]80 and 1.5.1[SECTION]80 to 4.6.1[SECTION]80 as is evident from the notice dt. 4.6.1[SECTION]80 contained in Annex. 1 to the petition. The said notice/order dated 4.6.1[SECTION]80 was passed by the respondents which provided for removal of the petitioner from service with effect from 1.6.1[SECTION]80. However, the petitioner was asked to file a representation regarding his salary etc. for the period of absence with sufficient proof for reasons to remain absent. Petitioner filed an application/ representation dated 20.6.1[SECTION]80 contained in Annex. 2 to the petition that petitioner being a regular employee could not have been removed without following the procedure of law and asked the respondents to recall the order dt. 4.6.1[SECTION]80 immediately. The said reply was received by the respondent No. 3 on 23.6.1[SECTION]80 and after considering the same, respondent No. 3 issued the notice dt. 30.6.1[SECTION]80 contained in [SECTION] to the petition to show cause why action should not be taken against petitioner as per the rules as he remained absent without leave for the period stipulated in the notice. Petitioner, instead of filing a reply to the said show cause dated 30.6.1[SECTION]80, filed an appeal on 30.6.1[SECTION]80 contained in Annex. 4 to the petition before respondent No. 2 against the order dt. 4.6.1[SECTION]80. Consequently, respondent No. 3 considered the case in absence of reply to show cause and passed impugned order dt. 27.[SECTION].1[SECTION]80 removing petitioner from service and the same was also communicated to the respondents No. 1 and 2. Appeal of the petitioner against order dated 4.6.1[SECTION]80 was rejected on 4.12.1[SECTION]80 vide order dt. 4.12.1[SECTION]80 contained in [SECTION] to the petition only on the ground that the order dt. 4.6.1[SECTION]80 was merely a show cause notice and the petitioner had been finally removed from service vide order dt. 27.[SECTION].1[SECTION]80. As the petitioner did not prefer any appeal against the said order, the appeal against the order dt. 4.6.1[SECTION]80 was not maintainable. Petitioner received the order dt. 4.12.1[SECTION]80 and instead of filing an appeal before respondent No. 2 against the order dt. 27.[SECTION].1[SECTION]80, he preferred a further appeal to respondent No. 4 on 2.1.1[SECTION]80 contained in [SECTION] to the petition and the same has been dismissed vide order dt. 4.5.1[SECTION]83 contained in [SECTION] to the petition. Petitioner preferred further appeal before respondent No. 1 on 2[SECTION].5.1[SECTION]83 contained in [SECTION] to the petition and the said appeal was also dismissed by respondent No. 1 after hearing the petitioner vide order dt. 22.4.1[SECTION]87 contained in [SECTION] to the petition only on the ground that the actual effective order of punishment was passed on 27.[SECTION].1[SECTION]80 and no appeal had been preferred against the same. Being aggrieved and dissatisfied, petitioner has filed the instant petition challenging the aforesaid impugned orders.
3. Heard S/Shri [ENTITY] learned Counsel for the petitioner and [ENTITY] and [ENTITY] learned Counsel for the respondents.
4. S/Shri [ENTITY] and [ENTITY] have raised preliminary objection regarding maintainability of the writ petition. Undisputedly, services of the petitioner were governed by the non-statutory rules known as the Rajasthan Rules for Payment of Grant in Aid to Non Govt. Educational and cultural Institutions, 1[SECTION]63, hereinafter called "the Rules 1[SECTION]63" [SECTION] of the Rules 1[SECTION]63 provides that the services of the employees shall be governed by the agreement executed with the Head of the Institution. [SECTION] provides that the services of the employees can be terminated after affording him reasonable opportunity to show cause. [SECTION] provides for first appeal against the order of Management Committee to the Director and secondly to the Govt. as per the requirement of [SECTION] to the said rules.
5. It has been canvassed on behalf of the respondents that the said rules are non statutory and the services of the petitioner were governed by the terms and conditions of the agreement. Petitioner did not file a copy of the agreement and the terms of agreement cannot be enforced through writ jurisdiction, therefore, this writ petition is not maintainable. Another objection regarding maintainability is that the respondent [ENTITY] is a Society registered under the [ACT] and the services of the petitioner being governed by the non statutory Rules 1[SECTION]63, the Society is not amenable to writ jurisdiction.
6. So far as the first objection is concerned, in Bareilly Development Authority v. Ajay Pal Singh AIR 1[SECTION]8[SECTION] SC 1706, a similar contention was raised, though regarding a contract/agreement with State. The Apex Court considered a catena of judgments particularly, [PRECEDENT] ; [PRECEDENT] ; [PRECEDENT] and arrived at the conclusion that where the contract entered into between the State and the persons agreed is non-statutory and purely contractual and the rights are governed only by the terms of the contract, writ petition under [SECTION] of the [ACT] is not maintainable. The Court observed as under:
Where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under [SECTION] of the [ACT] so as to compel the authorities to remedy a breach of contract pure and simple.
7. However in [PRECEDENT]. , the Supreme Court affirmed and approved the view taken by the Apex Court in Bareilly Development Authority (supra), but it further provided that High Court. While exercising its extra ordinary jurisdiction under [SECTION] of the [ACT], may satisfy itself on the materials on record that the State has not acted in arbitrary or erratic manner. In Rajasthan State Road Transport Corporation v. Krishna Kant AIR 1[SECTION][SECTION]5 SC 1715, the Hon'ble Apex Court has categorically held that where dispute arises from general law of contract, the appropriate forum may be a civil court and the appropriate remedy would be a civil suit.
8. In the instant case, petitioner has not filed the copy of the agreement, which he had entered with the respondent Society. Thus, it is not possible for the court even to examine the terms and conditions of his employment.
[SECTION]. The second issue is also no more res integra. This issue has been considered from time to time by the courts i.e. Radha Charan Sharma v. U.P. Cooperative Federation and Ors. 1[SECTION]82 Local Bodies and Educational Cases 8[SECTION]; Ram Lakhan Pathak v. District Assistant Registrar, Cooperative Societies, Kanpur and other, 1[SECTION][SECTION]6 (1) Educational and Science Cases 32; Workmen Kampli Cooperative Sugar Factory Limited v. The Management of Kampli Sugar Factory Limited and Ors. 1[SECTION][SECTION]4 (6[SECTION]) F.L.R. 31[SECTION]; [PRECEDENT] ; [PRECEDENT]. ; [PRECEDENT]. ; Sri Konaseema Cooperative Central Bank Ltd. AIR 1[SECTION][SECTION]0 A.P. 171; [PRECEDENT] ; [PRECEDENT] ; Aley Ahmad Abidi v. District Inspector of Schools, Allahabad and Ors. AIR 1[SECTION]77 Alld. 531; [PRECEDENT] ; [PRECEDENT]. ; Executive Committee of Vaish Degree College Shamli v. Laxmi Narain AIR 1[SECTION]76 SC 888; P. Bhaskaran and Ors. v. Additional Secretary, Agricultural (Cooperation) Department and Ors. AIR 1[SECTION]88 Ker. 74; [PRECEDENT]. . All the aforesaid authorities were considered by this court in S.B.Civil Writ Petition No. 21[SECTION]7/1[SECTION]8[SECTION] Savarmal Pansari v. Churu Wholesale Upbhogta Sahkari Bhandar Ltd. and Anr. decided on 1[SECTION].8.1[SECTION][SECTION]7 and came to the conclusion that where a society does not owe its birth to a statute nor its existence depends upon a statute, it will not be amenable to writ jurisdiction. If it is merely a creation of the committee of management of the cooperative society, the mere requirement of registration or even aid from the Govt. would not make the Society amenable to writ jurisdiction. In the instant case, no sufficient material has been placed on record, on the basis of which this issue can be conclusively determined. Therefore, no specific finding can be recorded on this count. As Shri [ENTITY] has fairly conceded that 1[SECTION]63 Rules are non-statutory, it is difficult to assume that this court can issue any writ to the respondent Society. Even if this court wants to decide the case on merits, the evidence/material placed on record falls short to determine any issue. Petitioner did not place the copy of the agreement of service on record. Order dated 4.6.1[SECTION]80 reveals that respondent Society had issued notice on 7.3.1[SECTION]80, the same is not brought on record. Nor the petitioner explained why he did not file any reply to the said show cause notice dated 7.3.1[SECTION]80, once he became aware of the fact that his services had been terminated vide order dt. 27.[SECTION].1[SECTION]80, as it was made clear to him vide order dt. 4.12.1[SECTION]80 contained in [SECTION] to the petition. Petitioner always avoided acknowledging the said order as is evident from the contents of Annexs. R/5, R/10, R/12 and R/13 wherein the respondents have tried their best to serve the petitioner through registered post on the address given by him. He never intimated the respondents, if he had ever changed his residence. Moreover, there is sufficient proof that the said order and even the notice prior to passing the order dt. 27.[SECTION].1[SECTION]80 were served upon the petitioner by the respondents by affixing the notice on the house of the petitioner, which was done in presence of two independent witnesses and the impugned order dt. 27.[SECTION].1[SECTION]80 was also affixed on his house. Shri [ENTITY] has vehemently urged that this was not the service as per the provisions of the Code of Civil Procedure, 1[SECTION]08. There is no substance in the submission as the provisions of [ACT] are not applicable in disciplinary proceedings. The contents of the notice dt. 18.8.1[SECTION]80 contained in Annex. R/4 to the reply to the petition were to the effect that the petitioner was given a chance to file a reply to show cause within a period of fifteen days. Petitioner did not avail this opportunity and did not file reply. Whether the service effected or not is a disputed question of fact and cannot be determined in writ proceeding.
10. Shri [ENTITY] has next urged that once the petitioner had been removed from service vide order dt. 4.6.1[SECTION]80, the respondents became functus officio and there was no occasion for respondent No. 3 to pass the order dt. 27.[SECTION].1[SECTION]80. This argument has no force as the services were not governed by any statutory Rules, rather the same was subject to the terms and conditions provided in the agreement of service. Petitioner himself has made an application on 20.6.1[SECTION]80 contained in Annex. 2 to the petition to recall the said order. Moreover, the petitioner failed to point-out by what means, he has been prejudiced if a second fair chance of defence had been accorded to him on his own application dt. 20.6.1[SECTION]80. A person cannot be allowed to blow hot and cold in the same breath as it would be in contravention of the principle of election. In R.N.Gosai v. Yashpal Dhir AIR 1[SECTION][SECTION]3 S.C. 352, the Hon'ble Supreme Court has observed as under:
10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept, and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid and then turn round and say it is void for the purpose of securing some other advantage.
11. Thus, it is settled law that after taking advantage under an order, a party may be precluded from saying that it is invalid and asking to set it aside. In the instant case, petitioner had been given a concession to reply to show cause afresh. It may be mentioned here that even prior to passing of an order dated 4.6.1[SECTION]80, the notice dt. 7.3.1[SECTION]80 was served upon petitioner and petitioner did not file any reply to the same. Petitioner is not permitted to agitate this issue. Petitioner had been aware of the fact that again an order had been passed on 27.[SECTION].1[SECTION]80, the court fails to understand why he could not file appeal against the same. Further in view of the fact that contractual obligation cannot be enforced through writ jurisdiction and as it could not be decided whether the respondent Society is amenable to writ jurisdiction or not, the instant petition does not warrant the exercise of extra ordinary discretionary jurisdiction under [SECTION] of the [ACT]. Therefore, the petition is dismissed.