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CASE NO.: Appeal (civil)  1317 of 2005

PETITIONER: India Literacy Board and Ors.                             

RESPONDENT: Veena Chaturvedi and Ors.                                 

DATE OF JUDGMENT: 21/02/2005

BENCH: Ashok Bhan & Dr. AR. Lakshmanan  

JUDGMENT: J U D G M E N T (arising out of Special Leave Petition (Civil) No. 10373 of 2003)    

Dr. AR. Lakshmanan, J.

Leave granted. This civil appeal is directed against the final judgment and order dated  08.05.2003 passed by the High Court of Judicature at Allahabad, Lucknow  Bench in C.M. Application No. 18906/2002 in Special Appeal No. 296  (S/B)/2001 whereby the High Court has dismissed the petition.  

The appellant \026 India Literacy Board is imparting education to  children upto Class VIII at Lucknow, which is now a separately registered  society under the Societies Registration Act, 1860.  The respondents were  appointed as teachers on purely contractual basis subject to the terms and  conditions which were made part of the written contract duly executed by  the respondents respectively for fixed periods.  An advertisement was got  published by the Management of the appellant-Board for appointment of  teachers.  The respondents along with others were eligible to apply again for  fresh contractual employment.  The respondents instead of applying in  response to the advertisement chose to approach the High Court by filing  writ petition No. 2917 (S/S)/2001, praying for the following reliefs: "(a) to issue a writ, order or direction in the nature of Certiorari  quashing the advertisement as published in "Dainik Jagran" dated  6.6.2001, the true copy of which is contained as Annexure-22 to the writ  petition, as it relates to the post of Assistant Teachers of Welthy-fisher  Children’s Academy, India, India Literacy Board, Literacy House, Kanpur  Road, Lucknow, held by the petitioners.

(b) to issue a writ, order or direction in the nature of Mandamus  commanding the opposite parties not to hold any selection and  appointment from outside against the post of  Assistant Teachers against  which the petitioners have been working since last many years pursuant to  the impugned advertisement contained in Annexure-22 to the writ petition.

(c)  to issue a writ, order or direction in the nature of Mandamus  commanding the opposite parties to allow the petitioners to continue as  Assistant Teachers of Welthy-fisher Children’s Academy, India, India  Literacy Board, Literacy House, Kanpur Road, Lucknow and to pay to the  petitioners their salary at par as admissible to an Assistant Teacher of a  Basic School run and managed by the "U.P. Basic Shiksha Parishad"  together with all allowances as also together with the arrears of salary."     

They alleged that the appellant-Society is an instrumentality of the  State within the meaning of Article 12 of the Constitution of India.  

On 21.06.2001, the High Court passed the following interim order: "Learned counsel for the petitioners has pointed out that in  pursuance of the advertisement dated 6.6.2001 which has been annexed as

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Annexure-21 to the writ petition, the respondents are going to make  selection although the petitioners are working with the respondents since  last 8-13 years.  In view of this, it is hereby provided that this matter be  listed before appropriate Bench on 3.7.2001.

In the meantime, any selection is finalized, that will not be  implemented till 3.7.2001."  

The writ petition was again listed on 03.07.2001.  The appellants  raised a preliminary objection regarding the maintainability of the writ  petition itself.  The case was listed again on 19.07.2001.  Counter and  rejoinder affidavits were exchanged between the parties.  The appellants  filed an application for vacation of the ex-parte interim order dated  21.06.2001.  It was submitted by counsel for the appellant that the  respondents are in a purely contractual employment and have no right to  continue in service and their grievance is also not amenable to writ  jurisdiction.  In support of their contention, certain rulings of the Allahabad  High Court and other rulings were relied on.

Feeling aggrieved by the interim orders dated 21.06.2001 and  20.07.2001, which according to the appellant amounts to final decision, the  appellant filed a special appeal before the Division Bench of the High Court.   The Division Bench passed the following order: "We are of the view that any observation of ours in the present  special appeal will ultimately prejudice the case of the parties before  Hon’ble the single Judge in the pending writ petition, hence we desisted  ourselves from expressing any view.  Admittedly, the teachers have been  serving in between 8 to 13 years.  If they continue for one month more in  pursuance of the interim order, the India Literacy Board will not suffer  any loss.

In view of the aforesaid reasons, we direct the Registry to list the  writ petition bearing No.2917/2001 (s/s) before Hon’ble single Judge in  the next cause list.

On a mention being made by the counsel of either of the parties  before Hon’ble single Judge may hear and decide the writ petition when  the writ petition will be listed.  In case due to the unavoidable reason, the  writ petition would not be disposed of on the date of listing, Hon’ble the  single Judge will fix another date within a fortnight from the date of  listing and decide the writ petition on merit.

With the aforesaid observations, the Special Appeal is disposed  of."

The apparent intention of the Division Bench is thus seen that the  matter was to be finally decided within one month and further that if the  respondents herein are permitted to continue for one month more in  pursuance of the interim order, the appellant-Society shall not suffer any  loss.  Accordingly, the appellant paid salary to the teachers in compliance of  the order dated 10.08.2001.  

However, the case could not be decided despite the best efforts made  by the parties.  In the meanwhile, the respondents filed contempt petition  before the High Court and the single Judge sitting in contempt proceedings  passed the following order: "Shri P.K. Sundriyal, Secretary, India Literacy Board, Literacy  House, Alambagh has stated before this Court that salary for one month  was paid to the petitioners and they were not allowed to work as teachers.   In the instant case, a detailed interim order was passed by this Court on  20.7.2001 which was challenged by the opposite parties in special appeal.   The Division Bench while deciding the special appeal also mentioned in  the judgment "Admittedly, the teachers have been serving in between 8 to  13 years.  If they continue for one month more in pursuance of the interim

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order, the India Literacy Board will not suffer any loss."   Sri P.K.  Sundriyal knowingly and deliberately has disobeyed the order passed by  this Court by not allowing the petitioners to work.  There was no direction  by this Court for payment of salary to the petitioners in lieu of one month  work and the intention of the Division Bench was that the petitioners  should be allowed to continue in service for one month and no more.   Mere giving one month’s salary will not make compliance of the order  passed by this Court.  Prima facie, Sri Sundriyal is guilty for disobeying  the orders passed by this Court."     

The respondents filed an application for clarification of the order  dated 10.08.2001 passed by the Division Bench.  In the said application, it  was contended by the respondents that the Division Bench had directed the  appellants to allow the respondents to work and to pay their salaries but a  contingency was reflected in this direction because of the expectation of the  Division Bench that the writ petition may be disposed of within a fortnight.   The respondents further contended that the purport of the said order passed  by the Division Bench was to allow the respondents to work and pay them  their salary till the decision of the writ petition.  They alleged that the  opposite parties and the appellants have interpreted the order passed by the  Division Bench otherwise, and that they are taking undue benefit of the  contingency expressed by the Division Bench by taking the plea that only  one month salary was to be paid to the respondents by them and no more  than that.  

The said application was posted before another Division Bench for  hearing.  The appellant filed counter affidavit in the shape of objections to  the said application.  The learned Judges of the Division Bench, by order  dated 08.05.2003, while clarifying the order dated 10.08.2001 observed that  the respondents shall be paid salary in terms of the order passed by the  single Judge.  Aggrieved by the order passed by the Division Bench, the  above appeal, by way of special leave petition, was filed before this Court.   On 08.07.2003, upon hearing the counsel, this Court made the following  Order: "Heard the learned counsel for the petitioners.

It has been pointed out by the learned counsel for the petitioners  that despite the final judgment rendered by the High Court of Allahabad  holding that India Literacy Board is not a State within the meaning of  Article 12 of the Constitution (Annexure P-3), High Court has entertained  the petition and has granted interim order.  It is pointed out that even  though the matter is fixed for final disposal since last two years, it is not  heard by the High Court.

Hence, issue notice returnable within four weeks.  Dasti in  addition.  Meantime, operation of the impugned judgment is stayed."    

We heard Mr. Mahabir Singh, learned counsel for the appellant and  Mrs. Shobha Dikshit, learned senior counsel for the respondents.  Mr.  Mahabir Singh made the following submissions: 1.      The Division Bench while clarifying the order dated 10.08.2001  failed to consider the objections filed by the appellants; 2.      The appellant-Society is neither an instrumentality of the State  nor a State within the meaning of Article 12 of the Constitution  of India and, therefore, not amenable to writ jurisdiction under  Article 226 of the Constitution of India; 3.      The learned single Judge, in the instant case, by passing the  order dated 20.07.2001 has granted to the respondents the  reliefs which could not have been granted to them even at the  time of final disposal of the writ petition; 4.      The respondents were appointed as teachers on contractual  basis and their appointment was extended from time to time on  contractual basis with certain terms and conditions to which the

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respondents have agreed; 5.      Since the contractual term/period was over, the appellant- Society issued an advertisement for recruitment and that the  appellant-Society is fully competent to issue the advertisement.   However, none of the respondents though eligible to apply  again for fresh contractual employment, have chosen to file the  writ petition under mis-placed apprehension that they would not  be selected for fresh contract of employment; 6.      The respondents have utterly failed to disclose their substantive  right to the post and failed to point out violation of any  statutory rule and are therefore not entitled to any relief; 7.      The relationship between the appellant and the respondents is  based on contract and is purely one of master and servant.       Mrs. Shobha Dikshit, learned senior counsel appearing for the  respondents/teachers in reply to the argument of learned counsel for the  appellant submitted as follows: 1.      The respondents have experience of 8-13 years of service and  that in the interest of justice, the appellant should allow the  respondents to work as teachers pending disposal of the writ  petition. 2.      All the respondents have rendered more than 8-13 years of  service in the school except the artificial breaks created and  during all these periods they have been paid a consolidated  salary and by denying the payment of salary in the admissible  scale; 3.      The advertisement has been issued by the appellant in such a  manner so as to oust the respondents from the field of  eligibility; 4.      The interpretation order of the Division Bench made by the  appellant as if they are not required to pay the salary after one  month is not correct and the appellants are duty bound to pay  the salaries to the respondents as directed by the learned Single  Judge; 5.      The respondents who have rendered long continuous service as  assistant teachers under the appellant are aggrieved against the  intermittent breaks created in their services by issuing time- bound appointment orders from time to time and by the action  of the appellant in proceeding to issue advertisement for  selection against the posts held by the respondents in such a  manner as to completely oust the respondents from the field of  eligibility and also against the non-payment of salary as  admissible to the teachers; 6.      The appellant-Society was established with an object of  furthering the cause of adult literacy and for other different  laudable purposes enshrined under the Constitution of India.   The constitution and composition of the appellant-Board is such  as to have the pervading control of the Government of India in  collaboration with the State Government.  The funds for  running and maintaining the appellant-Board are released by the  Ministry of Human Resources and Development, Government  of India and, therefore, the writ petition filed by the respondents  in the High Court is maintainable in law.

Concluding her arguments, learned senior counsel for the respondents  submitted that the appellant cannot legally be permitted to proceed with the  impugned action pursuant to the impugned advertisement against the posts  held by the respondents nor can the appellant discontinue or dis-engage the  respondents from service.  By issuing periodical appointment orders under  the conditions of payment of consolidated monthly amount, the respondents  had been subjected to an unfair treatment and to exploitation of labour which  is specifically forbidden under the constitutional scheme.

We have carefully considered the rival submissions made by the  respective counsel appearing on the either side.  We have also perused the

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orders passed by the learned Single Judge and of the orders passed by the  Division Bench.

A perusal of the order passed by the High Court would clearly show  that the High Court as an interim measure directed issue of appointment  order which was not even the main relief claimed in the writ petition.  The  question is whether the reliefs which are not prayed for or which are not  claimed in the petition could have been awarded by the High Court even  before the disposal of the main case.  Another question would also arise as to  whether the writ petition is maintainable against the appellant-Board which  according to the appellant is neither an instrumentality of the State nor a  State within the meaning of Article 12 of the Constitution of India.  A  further question would also arise as to whether the appellant is under an  obligation to select the respondents as teachers when the contract entered  into by them ceased on 30.06.2001.

Leave to appeal was sought for by the appellant on the above grounds,  among others.  It has been consistently held by this Court in various cases  that in a case of contractual appointment for a fixed term, no mandamus can  be issued for continuing them in service but in the present case as an interim  measure a direction has been given by the High Court to issue appointment  orders which was not even the main relief claimed in the writ petition.

Though we have extracted several legal contentions urged by the  counsel appearing on either side in this appeal, we refrain ourselves from  expressing any view on the merits of the rival contentions which is  premature.  Any observation of ours in the present appeal will ultimately  prejudice the case of the parties before the High Court in the pending writ  petition.  It is stated by learned counsel for the appellant that one month  salary as directed by the High Court has already been paid to the respondents  in compliance of the order.  Though a specific direction was given by the  Division Bench by its order dated 10.08.2001 to pay salary for one more  month in pursuance of the interim order the said order had been wrongly  interpreted by another Division Bench of the High Court.  The order passed  in the special appeal by the Division Bench also observed that the question  raised by the parties in the writ petition is an arguable one.  It is an admitted  case that as on today the respondents are not working in the school.  When  they are not in fact working in the school, they are not entitled to any salary  by applying the rule of no work, no pay.  It is not in dispute that the  Management has issued an advertisement inviting applications from eligible  candidates.  The respondents have in fact not applied for the post in question  in response to the advertisement chose to invoke the extraordinary  jurisdiction of the High Court under Article 226 of the Constitution of India.   In our opinion, the questions raised in the writ petition is an arguable one.   The affidavits and counter affidavits have already been exchanged and,  therefore, in the interest of justice a direction should be issued to the High  Court to hear the writ petition which is ripe for hearing.  As already stated,  we have desisted ourselves from expressing any view on the merits of the  rival claims.  Interest of justice would be amply met if a direction is issued  to the learned Single Judge of the High Court with a request to take up the  main writ petition itself for final hearing and dispose of the same on merits  including the maintainability of the writ petition.  We direct the Registrar  General of the High Court, Allahabad at Lucknow to immediately place the  matter before a learned Single Judge of the High Court after obtaining  appropriate orders from the Hon’ble Chief Justice for posting the said case  before the concerned single Judge for final disposal.  Both the learned  counsel appearing before us have assured that they will extend their  cooperation in disposing of the writ petition finally.

We request the learned single Judge before whom the writ petition is  posted to take up this matter on priority basis and dispose of the same in  accordance with law within one month from the date of posting of the said  case in his Court.    

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  The civil appeal is disposed of accordingly.  No costs.