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PETITIONER: DIPAK KUMAR BISWAS

       Vs.

RESPONDENT: DIRECTOR OF PUBLIC INSTRUCTION & ORS.

DATE OF JUDGMENT06/03/1987

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) SEN, A.P. (J)

CITATION:  1987 AIR 1422            1987 SCR  (2) 572  1987 SCC  (2) 252        JT 1987 (1)   631  1987 SCALE  (1)544  CITATOR INFO :  D          1989 SC1607  (11,12)  R          1990 SC 415  (17,22,25)

ACT:     Constitution  of India: Article 136--Powers of the Court to enlarge relief.     Service  Law: Lecturer of private aided  college--Status of-Wrongful    termination   of   service   of--Nature    of relief--Whether  entitled to declaration of  continuance  in service--Aided colleges--Whether statutory bodies.     Assam  Aided College Employees Rules, 1960: Assam  Aided College Management Rules,  1965--Whether adopted in State of Meghalya.

HEADNOTE:     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

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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 v. Lakshmi Narain, [1976] 2 SCR 1006  and J. Tewari v. Jwala Devi Vidya Mandir & Others, [1979] 4  SCC 160, 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]     I.P.  Gupta v. Inter College, Thora, [1984] 3  SCR  752, 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 him.[578C-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

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appoint him as Lecturer once again, the Management should be permitted  to  do  so by granting relaxation  of  rules  and regulations. ]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2318  of 1985     From the Judgment and Order dated 1.8.83 of the  Gauhati High Court in S.A. No. 19 of 1978. Appellant-in-person D.N. Mukherjee for the Respondents. The Judgment of the Court was delivered by     NATARAJAN, J’-’ This appeal by special leave is directed against  a  judgment of the Gauhati High Court  rendered  in Second Appeal No. 19 of 1978. 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 21.2.75 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 27.3.75 the appellant was  selected for  the  post  and was issued an order  of  appointment  on 7.4.75.  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 2.5.75. To his shock he received a  communication from the Principal on 11.9.75 enclosing a copy of letter  of the  first respondent dated 28.8.75 informing him  that  his services  would be terminated with effect from  17.9.75.  By reason  of  the appellant’s representations the  matter  was kept  in  abeyance till 1.12.75 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 20.4.77 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

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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

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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.

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   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 v. Lakshmi Narain, [1976]  2  S.C.R. 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 S.R. Tewari v. District Board, Agra & Anr., [1964] 3 SCR 55, 59,  Execu- tive Committee of U.P. State Warehousing Corporation Ltd. v. Chandra  Kiran Tyagi, [1970] 2 SCR 250, 265; Bank of  Baroda v.  Jewan  Lal Mehrotra, [1970] 2 L.L.J. 54,  55  and  Sirsi Municipality  v.  Kom Francis, [1973] 3 SCR 348,  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

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             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               Art.  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  v.  Jwala Devi Vidya Mandir & Others, [1979]  4  SCC 160. 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. Smt. 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. 15,250  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 I.R. Gupta  v.  Inter  College, Thora,  [1984] 3 SCR 752. In that case Shri I.P.  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

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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  311(2) of  the Constitution. This Court, therefore, held  that  the principles  which should govern the case should be the  same as  those underlying Article 311(2). 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 1.12.75. Though the appellant had remained  in service till 20.4.77 in spite of the termination order,  the salary  payable  for  that period is  towards  the  services

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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 1.12.75 to 20.4.77, 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 Rs.21,100 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. P.S.S.                                                Appeal allowed. 583