Regular Second Appeal No. 1012 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1012 of 1987 DATE OF DECISION: April 28 , 2010 Satpal Gupta .....Appellant VERSUS Managing Committee, Sh.G.R.S.D. High School and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Ashok Gupta, Advocate for the appellant. **** RANJIT SINGH, J. Satpal Gupta is the appellant in this Regular Second Appeal. The appellant was appointed as Teacher in the educational institution named Ganga Ram Snatan Dharam High School, Ambala city. It is a privately managed Government aided school and is run by a Society registered under the Societies Registration Act. This institution used to run classes from 5th to 10th standard. In the year 1974, the Managing Committee decided to abolish Class fifth because of dwindling of the strength of the students in the said class. The Committee passed a resolution, which was approved by the District Education Officer (DEO). As a result, Regular Second Appeal No. 1012 of 1987 2 Class fifth in the school was abolished. Due to the abolition of this class, three teachers statedly became surplus. Management, accordingly, decided to terminate the services of these 3 teachers by way of retrenchment. The appellant and one Satya Varat Bhardwaj and Hari Kumar were thus retrenched being surplus. The Management Committee had approached the DEO for seeking approval for the retrenchment of the appellant, Hari Kumar and Satya Varat Bhardwaj, who directed the retention of the appellant. Against this, Satya Varat Bhardwaj filed an appeal before the Director of Public Instructions, Haryana. The Director through his order dated 13.03.1975 held that the appeal filed by Satya Varat Bhardwaj was not maintainable under law. He, however, sought further clarification from the DEO, Ambala. Thereafter, the Director vide his order dated 27.11.1975 reversed his earlier order and directed retention of Satya Varat Bhardwaj and retrenchment of the appellant. The appellant, thereafter, filed an appeal before the Secretary, Govt. of Haryana, Education Department, which was pending. when he filed the civil suit challenging the order dated 27.11.1975. The grievance made by the appellant was that once the appeal of Satya Varat Bhardwaj was dismissed, this order could not have been reconsidered without affording opportunity of hearing to the appellant. He, accordingly, would plead violation of principle of natural justice. In addition, the appellant would also plead that he was better qualified than Satya Varat Bhardwaj who lacked essential qualification to teach classes from sixth to tenth. The appellant would brand this order to be mala fide, illegal and null and void. Regular Second Appeal No. 1012 of 1987 3 The Managing Committee contested the suit. No written statement was filed by the State of Haryana. As per the stand of the Managing Committee, the appellant was JBT teacher in the school. It was stated that Class fifth in the school was abolished with the approval of the DEO and that the teachers had accordingly been rendered surplus. The decision, therefore, was taken to terminate the services of the teacher by way of retrenchment. It is also conceded that the DEO had approved the termination of services of Hari Kumar and Satya Varat Bhardwaj and directed retention of the appellant. Accordingly, Satya Varat Bhardwaj was relieved. It is then stated that Satya Varat Bhardwaj had filed an appeal before the Director who passed an order retaining him in the service and directing retrenchment of the appellant. It was stated by the Managing committee that the appeal filed by Satya Varat Bhardwaj was not competent under law but further pleaded that the appellant could not be foisted on the unwilling Managing Committee. The Managing Committee also urged that on the one hand the Director had coerced the Managing Committee to take Satya Varat Bhardwaj and on the other it had withheld the grant and directed the refund of earlier grant on account of Satya Varat Bhardwaj because he did not possess the requisite qualification. Thus, the Managing committee opposed the suit and prayed for its dismissal. Satya Varat Bhardwaj had been impleaded as a party in the suit filed by the appellant. This suit was decreed by the trial Court. Against this, the Management as well as Satya Varat Bhardwaj filed an appeal. He would plead that he was senior to Satpal Gupta as a teacher and possessed the requisite qualification. Regular Second Appeal No. 1012 of 1987 4 Satya Varat Bhardwaj would, however, attack the order passed by the DEO, Ambala to be contrary to rules and defend the order passed by the Director. He also disputed the fact that the appeal was dismissed by the Director at the first instance or that the same was subsequently not maintainable on this ground. The suit was tried on the following issues:- 1. Whether the order dated 27.11.75 is illegal and void for the reasons stated in the plain? OPP. 2. Whether the suit is not maintainable in the present form? OPD. 3. Whether the suit is barred by time? OPP. 4. Whether the Civil Court has no jurisdiction to entertain the suit? OPD. 5. Whether the suit is false and frivolous? OPD. 6. Relief. As already noted, the suit was decreed against which the appeal was filed. The appellate Court, however, has reversed the finding of the trial Court and accordingly, the appellant has filed these two appeals to challenge the order passed in separate appeal filed by the management as well as by Satya Varat Bhardwaj. Counsel for the appellant would mainly contend that having decided the factual issue in favour of the appellant, the First Appellate Court was not justified in allowing the appeal on the ground that the suit as formulated would not be maintainable and the only relief which could be sought would be for damages. The counsel has referred to the observation made in para 13 of the impugned Regular Second Appeal No. 1012 of 1987 5 judgment where this fact would come out that while passing the order retaining Satya Varat Bhardwaj, Director had not afforded opportunity of hearing to the appellant. The question to be determined in my view is to see whether the finding returned by the First Appellate Court about the maintainability of the suit in the form as constituted is justified in law or not. The case titled as Executive Committee of Vaish Degree College Shamli vs. Lakshmi Narain and others AIR 1976 S.C. 888 was relied upon and referred to define the terms statutory body. It is observed that the statutory body is one which is created by or under the statute and owes its existence to statute. The distinction has been drawn between the institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. As per the Hon'ble Supreme Court, later institution is not the statutory character. Having said so, the Hon'ble Supreme Court commenting to the scope of discretionary relief under the Specific Relief Act and observed as under:- “ 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.” Reference is also made to the observations made in this judgment, which are as under: “The relief of declaration and injunction under the Regular Second Appeal No. 1012 of 1987 6 provisions of the Specific Relief Act is purely discretionary and the plaintiff cannot claim it as of right. The relief has to be granted by the Court according to sound legal principles and ex-debite justice. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice of an engine of oppression. In these circumstances, while exercising its discretionary powers, the Court must keep in mind the well settled principles only if the ends of justice require for justice is not an object which can be administered in vacuum.” On the basis of the above authority and the other authorities relied upon by the First Appellate Court, it was held that there being no relationship of master and servant between the Managing Committee and the appellant, the suit for declaration that he continues to be in service, was not maintainable. It is observed that his remedy was by way of suit for damages, if it was felt that there was a breach of the terms of agreement. When confronted with this legal position, the counsel could not point out any infirmity in the view as taken by the Court. Thus I do not find any justification to interfere in the view taken by the Court. It has been rightly observed that contract of service cannot be enforced and at the most person who is wrongly terminated is entitled to seek damages. The right to seek the damages by the appellant thus has been recognized and he may be at liberty to seek the same relief if so advised and if otherwise permissible under law. Regular Second Appeal No. 1012 of 1987 7 No case for interference is made out. The Regular Second Appeal is accordingly dismissed. April 28, 2010 ( RANJIT SINGH ) rts JUDGE