RSA No. 69 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 69 of 2009 Date of Decision: 12.10.09 1. Mr. R.D. Sachdeva wife of Kishore Sachdeva, resident of H. No. 5N/7, NIT, Faridabad. 2. Mrs. Manika Rani wife of Ashok Kumar Bhatia, resident of H. No. E/31, Nehru Ground, NIT, Faridabad. 3. Mrs. Krishna Aggarwal, wife of P.C. Gupta, resident of H. No. 789, Sector 22, Faridabad. ... Appellants Versus 1. K.L. Mehta Daya Nand Public Senior Secondary School, Nehru Ground, NIT Faridabad, through its Principal. 2. K. L. Mehta Daya Nand Education Society, Arya Samaj Road, NIT Faridabad, through its Chairperson. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Rohit Ahuja, Advocate, for the appellants. Mr. P.K. Mutneja, Advocate, for respondent No. 1. Respondent No.2, already exparte. SHAM SUNDER, J. * * * * This appeal, is directed, against the order, dated 01.09.07, rendered by the Court of Additional Civil Judge (Senior Division), Faridabad, vide which, it rejected the plaint, under Order 7 Rule 11 (d) RSA No. 69 of 2009 2 of the Code of Civil Procedure, and the judgement and decree, dated 24.01.08, rendered by the Court of Additional District Judge (I), Faridabad, vide which, it dismissed the appeal. 2. The plaintiffs/appellants, claimed themselves to be the employees of K.L. Mehta Daya Nand Education Society, defendant, a registered entity, affiliated to the Central Board of Secondary Education. It was stated that the plaintiffs, were governed by the statutory rules of the Central Board of Secondary Education. They were to retire after attaining the age of 58 years, which was later on enhanced to 60 years, but stood retired, at the age of 55 years, on the basis of an oral direction, given by the Principal of the Institution. Consequently, a writ petition, was filed by the plaintiffs, in the High Court, as a result whereof, the defendants, were directed, to pass a speaking order. The defendants, were many a time, asked to allow the plaintiffs, to continue, in service, till the age of 60 years, but to no avail. Ultimately, a suit for declaration with consequential relief of mandatory injunction, was filed. 3. After hearing the Counsel for the plaintiffs, and, on going through the record, the trial Court, rejected the plaint, under Order 7 Rule 11 (d) of the Code of Civil Procedure. 4. Feeling aggrieved, an appeal was preferred, by the plaintiffs/appellants, which was also dismissed, by the Court of Additional District Judge (I), Faridabad, vide judgement and decree dated 24.01.08. RSA No. 69 of 2009 3 5. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiffs/appellants. 6. I have heard the Counsel for the parties, and have gone through the record of the case, carefully. 7. The Counsel for the appellants, submitted that the Courts below, were wrong, in coming to the conclusion, that it was a contract of personal service, which was not enforceable at law. He further submitted that defendant No. 1/respondent, is a private school affiliated with the Central Board of Secondary Education. He further submitted that the plaintiffs/appellants, were teachers, in the said School. He further submitted that the rules and regulations of the Central Board of Secondary Education, were applicable to the said School, and, as such, the plaintiffs/appellants, were governed, by the statutory rules. He further submitted that since there was violation of the statutory rules, a suit for the performance of contract, by way of mandatory injunction, was maintainable. He further submitted that even the first Appellate Court, committed a legal error, in holding, that no appeal, was maintainable, against an order/judgement, passed under Order 7 Rule 11 (d) of the Code of Civil Procedure, rejecting the plaint. He further submitted that the Courts below, recorded perverse findings, that since it was a contract of personal service, and, as such, was unenforceable at law. He placed reliance on Tata Chemicals Ltd. and others Vs. Kailash C. Adhvaryu, AIR, 1964, Gujarat, 265, Mohammed Kani Rowther Vs. Hassan Rowther Bulghese Beevi and another, AIR, RSA No. 69 of 2009 4 1972, Kerala, 56, K.S. Geetha Vs. Stanleybuck, AIR, 2003, Madras, 146, Devi Mandal Vs. Mohammad Nawaziah and others, AIR, 1968, Patna, 187 and Albert D'Souza and others Vs. The Divisional Controller and Deputy General Manager, Mysore, State Road Transport Corporation, Hassan Division, Hassan, AIR, 1975, Karnataka, 82, in support of his contention. 8. On the other hand, the Counsel for the respondent, submitted that the trial Court, rightly rejected the plaint, on the ground, that the contract of personal service, was not enforceable, at law. He further submitted that the service conditions of the plaintiffs, were not governed, by any statutory rules. He further submitted that the order of the trial Court, rejecting the plaint, under Order 7 Rule 11 (d) of the Code of Civil Procedure, and the judgement and decree, rendered by the first Appellate Court, confirming the order of the trial Court, are legal and valid. He also placed reliance on Pearlite Liners (P) Ltd. Vs. Manorama Sirsi (2004) 3, SCC, 172, and Executive Committee of Vaish Degree College, Shamli and others Vs. Lakshmi Narain and others (1976) 2, SCC, 58, in support of his contention. He further submitted that the order, rendered by the trial Court, and the judgement and decree of the first Appellate, were liable to be upheld. 9. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. The plaintiffs/appellants, were admittedly teachers, in K.L. Mehta Daya Nand Public Senior Secondary School, RSA No. 69 of 2009 5 NIT Faridabad. They stood retired w.e.f. 01.10.06, at the age of 55 years, on the ground, that there was surplus staff, in the school, and the management, had decided, to retire those teachers, who had attained the age of 55 years. Other reasons given for retiring them, at the age of 55 years, were that, there was no admission, in the school, and its financial condition was poor. There was only a relationship of master and servant, between the plaintiffs and the defendants. The provisions of Article 311 of the Constitution of India, were not applicable, to the plaintiffs. They were also not workmen, under the Industrial Disputes Act. Nothing was brought, on record, that the plaintiffs, were retired, from service, at the age of 55 years, in breach or violation of the mandatory provisions of the statute. The rules and regulations of the Central Board of Secondary Education, though, the school was affiliated to the same, were not applicable to the service conditions of the employees, working there. In Executive Committee of Vaish Degree College, Shamli and others case (supra), decided by a three Judge Bench of the Apex Court, the principle of law, laid down, was to the effect, that a contract of personal service, could not 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. Since, there was a relationship of master and servant, and it was a personal contract of service, in view of the principle of law, laid down, in Executive RSA No. 69 of 2009 6 Committee of Vaish Degree College, Shamli and others case (supra), it was not at all enforceable, at law. Even in Pearlite Liners (P) Ltd's case (supra), the principle of law, laid down, by the Apex Court, was to the effect, that a contract of personal service, could not be enforced, and the employer, could not be forced to take an employee, nor could he continue to be in service, against the will and consent of the employer. In view of the principle of law, laid down, in the aforesaid cases, by the Apex Court, no help, can be drawn, by the Counsel for the appellants, from Tata Chemicals Ltd. and others' case (supra), decided by a single Bench of the Gujarat High Court. The Courts below, were, thus, right in holding, that the contract, being of personal service, was not enforceable, at law. The trial Court, was also right in, rejecting the plaint, under Order 7 Rule 11 (d) of the Code of Civil Procedure. 10. No doubt, the first Appellate Court, by way of a passing reference, in its judgement, observed that, even an appeal, under Order 43 Rule 1 of the Code of Civil Procedure, was not maintainable, against an order, rejecting the plaint. However, this view of the first Appellate Court, is not correct. Rejection of plaint under Order 7 Rule 11 (d) of the Code of Civil Procedure, constitutes a decree, and appeal, under Order 43 Rule 1 of the Code of Civil Procedure, lies against the same. Similar principle of law, was laid down, in Devi Mandal's, Albert D'Souza and others, Mohammed Kani Rowther's and K.S. Geetha's cases (supra), relied upon, by the Counsel for the appellants. The finding of the first Appellate Court, that no appeal, against the RSA No. 69 of 2009 7 order, rejecting the plaint, passed, in this case, by the trial Court, was maintainable, being illegal, is reversed. However, reversal of this finding, does not, in any way affect the final decision, in the appeal. 11. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same, is dismissed, with costs. 12.10.2009 (SHAM SUNDER) Amodh JUDGE