12 December 1975
Supreme Court


Case number: Appeal Civil 1543 of 1974








CITATION:  1976 AIR  888            1976 SCR  (2)1006  1976 SCC  (2)  58  CITATOR INFO :  AP         1976 SC1073  (1)  RF         1976 SC2216  (7)  F          1977 SC 747  (17)  R          1981 SC 122  (5)  RF         1981 SC 212  (54)  F          1987 SC1422  (10,14)  D          1989 SC1607  (11)  D          1990 SC 415  (16,22)  F          1991 SC1525  (9)

ACT:      Master and  servant-Managing  Committee  of  a  college terminating services  of Principal  of college-Violation  of rule   requiring    Vice-Chancellor’s   approval-Rights   of Principal.      Specified Relief-Declaration  of continuing  in service when may be granted.

HEADNOTE:      The  appellant   is  the   Executive  Committee  of  an Educational Institution  (a college)  registered  under  the Registration of  Co-operative Societies Act, and the college was affiliated  to  a  University.  The  provisions  of  the University Act require that every decision of the management of an  affiliated college  to remove  from service a teacher shall be  reported  forthwith  to  the  Vice-Chancellor  and subject to  the provisions contained in the Statutes made by the University, shall not take effect unless approved by the Vice-Chancellor.      The respondent  was appointed  by the  appellant  as  a Principal of  the college but no agreement, as prescribed by the University  Act, and  the Statutes  was executed between the parties.  Two years after his appointment. the appellant served a  notice on  the  Principal  directing  him  not  to discharge the duties of the Principal and shortly thereafter terminated his  services. Thereafter, the respondent did not work as  Principal. The  respondent filed  a suit contending that he must be deemed to be continuing in service, as there was no  sanction of  the Vice-Chancellor for the termination of his  services, and  prayed for  an injunction restraining the appellant  from interfering with his duties as Principal



of the institution.      The trial  Court  dismissed  the  suit  but  the  first appellate Court  reversed the  decision and  the High  Court affirmed the decision of the first appellate Court.      In appeal to this Court, it was contended that: (1) the appellant was not a statutory body; (2) in the absence of an agreement the  requirement regarding  the  approval  by  the Vice-Chancellor would  not apply  and the termination of the respondent’s services  would be governed by the usual master and  servant   relationship.  (3)   there  are   no  special circumstances  for   enforcing  the   contract  of  personal service; and  (4) the  present case  was not  a fit  one for granting  the  reliefs  prayed  for,  they  being  equitable reliefs and in the discretion of the Court.      Allowing the appeal to this Court, ^      HELD. (Per Khanna and Fazal Ali, JJ.).      (1)  Merely  because  the  appellant  followed  certain statutory provisions  of the  University Act or the Statutes made thereunder,  it cannot  be held to be a statutory body. [1014 A-B]      (a) Before  an institution  can be a statutory body, it must be  created  by  or  under  the  statute  and  owe  its existence to  a statute.  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. 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 statutory  provisions, it cannot be said to be a statutory body. [1013 D-1014 A] 1007 Sukhdev Singh & Ors. v. Bhagatram Sardar Singh Raghuvanshi & Others, [1975] 3 S.C.R. 619, followed.      (b) Merely because it was affiliated to the University. that  there   were  certain   mandatory  provisions  of  the University Act  which were binding on the appellant; and the appellant was  governed by  the Statutes  of the  University would not be sufficient to alter the character and nature of the appellant and convert it into a statutory body. [1014 B- C]      (i) The appellant had an independent status having been registered under  the Registration of Co-operative Societies Act and  was a  self-governed or  an autonomous body. It was affiliated  to   the  University  merely  for  the  sake  of convenience and mainly for the purpose of recognition of its courses of study by the University. [1014 C-D]      (ii) All  that Statute  14A of  the University required was that  the Managing  Committee of the college must co-opt the Principal  of the  college and  a representative  of the teachers. By  co-opting them  the appellant did not lose its independent status  but continued  to remain a non-statutory and , autonomous body. [1011 F-G]      (iii) Similarly,  the fact  that the  Statutes  of  the University were  adopted by  the appellant  and it was, as a matter of  convention, bound to follow the provisions of the University Act,  would  not  clothe  the  appellant  with  a statutory status  or character. The adoption of the Statutes was  only  for  better  governance  and  administration  and extension of  the educational activities of the institution. [1014 G-H] D      Sabhajit Tewary  v. Union  of India  &  ors.  [1975]  3



S.C.R.  616   and  Kumari  Regina  v.  St.  Aloysius  Higher Elementary School & Anr. [1971] Supp. S.C.R. 6, followed.      (2) The case of P.R. Jodh v. A.L. Pande [1965] 2 S.C.R. 713, on which the High Court relied, is distinguishable. The High Court  has not  considered the  basic facts  present in that case,  but which  are not  present in the instant case, namely, (a)  the governing  body in Jodh’s case was itself a creature of  the  statute;  (b)  in  the  instant  case  the Statutes did  not apply  proprio vigore  but only  after  an agreement was executed between the employer and the employee as required  by those  provisions. and  (c) no agreement was ever executed  between the  parties in  the prescribed form. [1018 C-D]      Vidya Ram Mishra v. Managing Committee, Shri Jai Narain College, [1972] 3 S.C.R. 320, 326. followed.      (3)(a) A contract of personal service cannot ordinarily be specifically  enforced and  a Court,  normally, would not give a  declaration that  the contract subsists and that 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 is  subject to  three  exceptions,  (i) where a  public servant is sought to be removed from service in contravention of the provisions of Art. 311. (ii) Where a worker after  dismissal is  sought to  be  reinstated  under Industrial Law.  and (iii)  Where a  statutory body  acts in breach or  violation of the mandatory provisions of the Act. [1020 E-G]      Sirsi Municipality v. Kom Francis [1973] 3 S.C.R. 348.. Indian Airlines  Corporation v.  Sukhdeo  Rai  [1971]  Supp. S.C.R. 510,  514. 3.  R. Tewari  v. District Board, Agra and Anr., [1964]  3 S.C.R.  55, 59,  Executive Committee of U.P. State Warehousing  Corporation Ltd.  v. Chandra Kiran Tyagi. [1970] 2  S.C.R. 250,  265 and  Bank of  Baroda v. Jewan Lal Mehrotra [1970] 2 L.L.J. 54, 55, referred to.      Since the  appellant  is  not  a  statutory  body,  the present case  does not  fall  within  any  of  the  excepted categories  and  the  respondent  is  not  entitled  to  any declaration or injunction. [1020 G-H]      (b) Assuming  that  the  Sirsi  Municipality  case  has extended the  scope of  the exceptions  to public  or  local bodies even  if they  are non-statutory  bodies so that, the appellant though  a non-statutory  body, will still be bound by the statutory 1008 provisions of  law, in  view of the special circumstances of this ease, it will not be a proper exercise of discretion to grant a  decree for  declaration and injunction in favour of the respondent The grant of specific relief is, under ss. 20 and 34 of the Specific Relief Act, 1963 as well as under the Common Law,  purely discretionary  and can  be refused where the ends of justice do not require the relief to be granted. The exercise  of discretion  applies  as  much  to  a  Court exercising writ jurisdiction as well as in suits. The relief has to  be granted  by the  Court according  to sound  legal principles  and  ex  debito  justitiae.  The  Court  has  to administer justice  between the  parties and  cannot convert itself into  an instrument  of injustice  or  an  engine  of oppression. The  Court must  keep in  mind the  well-settled principles of  justice and  fairplay and should exercise the discretion only  if the ends of justice require it. [1021 C- D. 1022 A. 1023 H-1024 D, E-F; 1025 F]      Jerome Francis v. Municipal Councillors of Kuala Lumpur (1962) W.L.R.  1411. A.  Francis v. Municipal Councillors of Kuala Lumpur (1962) 3 All. E.R. 633, 637 and R.T. Rangachari v. Secretary of State for India in Council, L.R. 64 I.A. 40,



53-54, applied.      Mahant Indra Narain Das v. Mahant Ganga Ram & Anr., AIR 1965 All.  683, 684 and Bhairabendra Narayn Bhup v. State of Assam, A.I.R. 1953 Assam 162, 165, referred to.      Hill v.  C.A. Parsons  & Co.  Ltd. (1971)  3 All.  E.R. 1345, distinguished. ed.      In the  present case, neither the first appellate Court nor the  High Court  while decreeing  the respondent’s suit, considered whether  it is a fit case in which the discretion should be exercised in favour of the respondent. [1024 D-E]      (i) The  respondent served the institution only for two rears. If  relief as  prayed for is granted to him, he would have to  be paid  salary and  interest for  nine years which would amount  to more  than a lakh of rupees, even though he had not  done any  work for  the college during those years. and (ii)  though the respondent is not at fault, the payment of such a large sum would undoubtedly work serious injustice to the  appellant because  it is  likely to destroy the very existence of the Institution. [1024 G-1025 B]      Therefore,  instead  of  granting  the  relief  to  the respondent as  prayed for,  it he is allowed to withdraw and keep  the  sum  of  about  Rs.  21,000/-  deposited  by  the appellant by  virtue of  interlocutory  orders  towards  the salary of  the respondent,  it will  vindicate his stand and compensate him for any hardship caused to him by terminating his services and will put a stamp of finality to any further litigation between them [1025 C-F] (Per Bhagwati, J.):      This Court  has laid  down three exceptions to the rule under the  Common Law  that the  Court will  not  ordinarily force an employer to retain the services of an employee whom he no  longer wishes  to employ: (1) In the case of a public servant dismissed from service in contravention of Art. 311; (2) Under  the Industrial Law. and (3) When a statutory body has acted  in breach  of a mandatory obligation imposed by a statute. [1030 B-C, F-G]      Dr. S.B.  Dutta v. University of Delhi A.I.R. 1958 S.C. 1050. Life  Insurance Corporation  of India  v. Sunil  Kumar Mukherjee A.I.R. 1961 S.C. 847. Mafatlal Barot v. Divisional Controller, State  Transport, Mahsana A.I.R. 1966 S.C. 1364. B.N. Tewari  v. District Board, Agra, A.I.R. 1964 S.C. 1680. U.P. State  Warehousing Corporation  v. C.K.  Tyagi [1970] 2 S.C.R. 250.  Indian  Airlines  Corporation  v.  Sukhdeo  Rai [1971] Supp.  S.C.R. 510  and Bank  of Baroda  v. Jewan  Lal Mehrotra [1970] 2 L.L.J. 54. referred to.      But, these  3 exceptions formulated in the statement of law laid  down by  this Court,  are not  intended to  be and cannot be  exhaustive. The  categories of  exceptions to the general rule  should not  be closed, because, any attempt at rigid and  exhaustive formulation of legal rules is bound to stifle the  growth of  law and cripple its capacity to adapt itself to  the changing  needs of  society. In  fact, in the Sirsi Municipality  v. Kom Francis [1973] 3 S.C.R. 348, this Court 1009 pointed out  that the  third exception  applied not  only to employees in  the service of "bodies created under statutes" but also  to those  in the  employment of  "other public  or local authorities.  This exception  is  really  intended  to cover  cases   where  by   reason  of  breach  of  mandatory obligation imposed  by law,  as distinct  from contract, the termination of service is null and void so that there in law no repudiation at all. [1031 C-F]      Where the  relationship between  the employer  and  his employee is governed by statute or statutory regulations the



termination of  the service  of the employee may, in a given situation, be null and void, and in that event, it would not have the  effect of  putting an  end to the contract and the employee would be entitled to a declaration that his service is continuing. What the employee would be claiming in such a case is  not enforcement of contract of personal service but declaration of  statutory invalidity  of an  act done by the employer. [1029 A-D]      In the  present case,  it is  not necessary  to  decide whether the  appellant is  or is  not statutory  body  or  a public authority  or whether  the Statutes of the University had the  force of law conferring rights on the respondent as in the  case of  P. R.  Jodh v.  A. L. Pande [1965] 2 S.C.R. 713, or  that they  only set  out the  terms and  conditions which conferred  no legal  rights unless and until they were embodied  in  a  contract  between  the  appellant  and  the respondent, as  in the  case of  V. R.  Mishra  v.  Managing Committee, Shri  Lal Narain  College [1972]  3 SCR 320, 326, because, the  termination of  the respondent’s  services was ineffective and  inoperative as  it was  not approved by the Vice-Chancellor as  required  by  the  University  Act.  The language of  the section  of the  University Act is absolute and peremptory  and provides  in unambiguous  terms that the termination shall  be  ineffective  and  inoperative  unless approved by  the Vice-Chancellor;  and  this  rule  of  law, enacted by the Legislature, operates irrespective of whether the management is or is not a statutory body. When the Court refuses to  recognise the  termination  as  valid,  it  only enforces the  law and  there is no question of transgressing the principle  that a contract of personal service cannot be enforced. [1031F, 1032 D]      Therefore, the  termination  of  the  services  of  the respondent by the appellant was ineffective and void and did not operative  to put  an  end  to  the  employment.  Hence, ordinarily the  respondent, whose  termination of service is thus null  and void  or ineffective by reason of a statutory provision or  subordinate legislation which has the force of law, should  be awarded  a declaration that he continues; in service and  the fact  that he  was in employment only for a short period  of two  years should be no ground for refusing him the declaration. [1032 D-F]      But in  view of  the Peculiar  facts and  circumstances this case,  and since  the grant  of tho  relief is  in  the discretion of  the Court, it must be held that this is not a proper case  for the  grant of such relief. If the relief of declaration and  injunction is granted to the respondent, it will involve  the appellant in a financial liability of mere than  a   lakh  of  rupees  and  that  would  wipe  out  the educational institution  of the  appellant or  in any  event seriously  cripple   it  and   that,  in   its  turn,  would prejudicially affect the interests of the student community. That is  an important  consideration which  the Court cannot fail to  take into  account in  exercising  its  discretion. Moreover,  the   aggregate  amount  of  about  Rs.  21,000/- deposited by the appellant in Court would be a fair and just compensation to the respondent. [1032 F-G, H-1033 B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No 1 543 of 1974.      Appeal by  special leave  from the  Judgment and  order dated the  30th July,  1974 of  the Allahabad  High Court in Second Appeal No. 2973 of 1972.



    S.V. Gupte,  J.  P.  Goyal,  P.  C.  Gupta  and  G.  S. Chatterjee for the appellant.      M.K. Ramamurthi and O.P. Rana for Respondent No. 1.      D.P. Mukherjee for Respondents 3-5. 1010      The Judgment  of H. R. Khanna and S. Murtaza Fazal Ali, JJ. was  delivered by Fazal Ali, J., P. N. Bhagwati, J. gave a separate opinion.      FAZAL ALI,  J.-This appeal by special leave is directed against the  judgment of  the Allahabad High Court affirming the decree  of the  First Additional Civil & Sessions Judge, Muzaffarnagar by  which the  plaintiff/respondent’s suit for injunction was decreed.      The appeal  arises in  the following circumstances. The appellant which  is the  Executive Committee of Vaish Degree College in  the District  of  Muzaffarnagar  was  registered under the  Registration of  Cooperative Societies  Act as an institution for  imparting education.  The  affairs  of  the College were managed by the Executive Committee of the Vaish College which is the appellant in this case. In the year the Vaish Degree  College was  affiliated to the Agra University and as  a consequence  thereof  the  College  agreed  to  be governed by  the provisions  of the  Agra University Act and the  statutes  and  ordinances  made  thereunder.  With  the establishment of the Meerut University some time in the year 1965 the  Vaish Degree  College got affiliated to the Meerut University.  The   plaintiff/respondent  was   appointed  as Principal of the College on permanent basis with effect from July 1,  1964 and  his appointment as Principal was formally approved by  the Vice-Chancellor of the Agra University. Two years later  it appears  that differences  arose between the Executive    Committee    of    the    College    and    the plaintiff/respondent resulting  in allegations  and  counter allegations and  culminating  in  a  notice  served  by  the Executive   Committee   on   October   24,   1966   on   the plaintiff/respondent directing  him  not  to  discharge  the duties of  the Principal  and another  letter  was  sent  to defendant No.  4 a  member of  the staff  of the  College to officiate as Principal in place of the plaintiff/respondent. This  was   fol  lowed   up  by   a  counter-notice  by  the plaintiff/respondent to  the Executive  Committee  that  the notice sent to him was illegal and the respondent also asked defendant No.  4 not  to assume  charge of the Principal. On March 12,  1967, the  Executive Committee  by  a  resolution terminated the  services of  the  plaintiff/respondent  with effect from October 24, 1966 and this resolution was amended by another  resolution on  March 29,  1967. Even  before the formal  resolution   terminating   the   services   of   the plaintiff/respondent was  passed it  appears that  the plain tiff had  filed the  present suit on October 28, 1966 before the Court  of the  First Additional  Civil & Sessions Judge, Muzaffarnagar which  was transferred  for  disposal  to  the Court of the Munsif, Kairana.      The plaintiff’s  case was  that on  being affiliated to the Agra  University and thereafter to the Meerut University and adopting  the provisions of the Acts and the statutes of the  said   Universities  the  appellant  College  became  a statutory body  and had  no jurisdiction  to  terminate  the services of  the plaintiff/respondent  without  seeking  the previous approval  of  the  Vice-Chancellor.  The  plaintiff further submitted that after his appointment he entered into an agreement with the Executive Committee in accordance with the statutes  of the University and 1 appellant was bound by the terms and provisions of the statutes under 1011



which his  services could  not  be  terminated  without  the previous approval  of  the  Vice-Chancellor.  The  plaintiff therefore  contended  that  his  removal  from  service  was without jurisdiction and he must be deemed to have continued in service.  He also  made some allegations of bias and mala fides against the Executive Committee and some other persons with  which  we  are  not  concerned  in  this  appeal.  The plaintiff accordingly  prayed for  an injunction restraining the defendants  from interfering  with  his  duties  as  the Principal of  the College.  It appears,  however,  from  the record that  after the  notice  given  to  the  plaintiff  / respondent by  the Executive  Committee  the  plaintiff  was bereft of all his powers and in spite of his attempts to get into the College and work as Principal he was not allowed to do so  which led  to some  criminal proceedings also. It is, therefore, clear  that at  least after the resolution of the Executive Committee  was passed  termination the services of the plaintiff  he has  not been  working as Principal of the College uptil  now. This  position is not disputed before us by counsel for the parties.      The defence  was that the Executive Committee was not a statutory body  and therefore  was not bound by the statutes and the  provisions of  the University  Acts although  as  a matter of  convention it  had agreed to follow the same. The defendant/appellant  also  denied  the  allegations  of  the plaintiff/respondent  that   the  Executive   Committee  had entered into  any agreement  or contract of service with the plaintiff/respondent. The  defendant further alleged that as the plaintiff/respondent remained habitually and perpetually absent  from  his  duties  without  the  permission  of  the concerned authority the defendant/appellant was compelled to dispense with  the services  of the plaintiff/respondent. In fact the  plea taken by the defendant was that the plaintiff himself by  his remaining  perpetually  absent  from  duties abandoned the  service and had put an end to the contract of service and  therefore he could not be heard to say that the contract of service still subsisted.      The Trial  Court of Munsif, Kairana, framed a number of issues  and   after  considering   the  evidence   and   the circumstances, found-(i)  that the  plaintiff had  failed to prove  that   he  ever   executed  any  agreement  with  the defendant/appellant; and  (ii) that  the defendant/appellant was not  a statutory body and therefore was not bound by the provisions of  the University  Acts  or  the  statutes  made thereunder. The  learned Munsif  therefore found that a case for declaration  or injunction  had not been made out and he accordingly dismissed the suit of the plaintiff.      The plaintiff/respondent  went up in appeal against the judgment and  decree of  the Munsif and the appeal was heard by  the   First   Additional   Civil   &   Sessions   Judge, Muzaffarnagar, who  by his  order dated  December  3,  1971, reversed  the   decision  of  the  Munsif  and  decreed  the plaintiff’s suit  and granted  the injunction prayed for. lt may  be   noticed  that   so  far   as  the   plea  of   the plaintiff/respondent that  be had executed an agreement with the Executive  Committee of  the College  which  formed  the basis of  the terms of his contract of service was concerned the learned  Additional Civil & Sessions Judge also affirmed the finding  of the Munsif on this point and held that there was no such 1012 agreement. Even  before us  this finding was not disputed by the learned  counsel for  the plaintiff/respondent  who  has proceeded on  the assumption  that there  was  no  agreement executed between the plain tiff and the defendant as alleged



by the plaintiff.      The defendant/appellant  filed a  second appeal  hl the High Court  of Allahabad  against the  decision of the First Additional Civil  & Sessions Judge decreeing the plaintiff’s suit. The  matter was  heard by a single Judge who, however, referred the  case to  a Full  Bench framing  the  following issue:           "Can  the   Civil  Court   grant  the   relief  of      injunction in  view of  the facts  and circumstances of      the present case ?" Consequently the  matter was placed before the Full Bench of the Allahabad  High Court  which after hearing the arguments decided   the    following   points   in   favour   of   the plaintiff/respondent:           (1)     That  the   defendant/appellant  being   a                statutory body was bound by the provisions of                the University  Acts and  the  statutes  made                thereunder and  therefore the  termination of                the  services   of  the  plaintiff/respondent                without obtaining  the sanction  of the Vice-                Chancellor was illegal & invalid; and           (2)   That in  the facts  and circumstances of the                case, the  plaintiff/respondent was  entitled                to the injunction as prayed for.      The case  then came back before the Single Judge who in view of  the decision  of the Full Bench affirmed the decree of the First Additional Civil & Sessions Judge decreeing the plaintiff’s suit  with the  modification that  the suit  was decreed only against defendants 2, 4, 6 & 7 but dismissed as against defendants 1 & 5. Hence this appeal by special leave before us.      Mr. Gupte  learned counsel  for the appellant submitted before  us  that  it  was  not  necessary  to  go  into  the complicated facts  of the  case, because he adumbrated three propositions of  law before  us which  in his  opinion  were sufficient to  decide the  case. In  the first  place it was contended that  the finding  of the  Full Bench which formed the basis of the judgment of the High Court appealed against that  the  defendant/appellant  was  a  statutory  body  was legally erroneous;  secondly the counsel submitted that even if the  appellant was  a statutory  body as no agreement was executed  between  the  respondent  and  the  appellant  the statutes passed  by the  University would  not apply and the termination of  the services  of  the  respondent  would  be governed by  the usual  master and servant relationship; and thirdly, it  was contended  that it is well settled that the courts do  not enforce a contract of personal service in the absence  of   special  circumstances   as  laid  by  several decisions of  this Court, and the case in hand does not fall within any of the exceptions laid down by this Court.      Mr.  Ramamurthi  learned  counsel  for  the  respondent rebutted the  arguments  of  Mr.  Gupte  and  supported  the judgment of  the Full Bench of the Allahabad High Court that the appellant was a statutory body 1013 and  therefore  the  termination  of  the  services  of  the respondent was  legally invalid.  It was  further  contended that in  view  of  the  decision  of  this  Court  in  Sirsi Municipality v.  Kom Francis the scope of the exception laid down by  this Court  in various cases has been extended even to include  within its  fold non-statutory  bodies  provided they   are    public   or    local    bodies    which    the appellant/defendant  was  undoubtedly  one.  Lastly  it  was submitted that  once it  is established that the termination of the  services  of  the  respondent  was  legally  invalid



inasmuch as  the sanction  of the  Vice-Chancellor  was  not obtained,  the  declaration  that  the  plaintiff/respondent continued in  service and  injunction  prayed  for  must  be granted as  a matter of law. In the course of the arguments, however,  the   learned  counsel   for  the  appellant  also suggested that the relief of injunction or declaration being an equitable relief and in the discretion of this Court this was not  a fit  case in  which  this  discretion  should  be exercised in favour of the plaintiff/respondent.      We would  first deal with the important question, which has been  the sheet-anchor  of the  arguments of the learned counsel for  the respondent  as also  the main  basis of the judgment of  the Full  Bench of the Allahabad High Court, as to whether  or not  the appellant Executive Committee can be said to  be a  statutory body  in the  circumstances of  the present case.  It seems to us that before an institution can be a  statutory body  it must  be created  by or  under  the statute and owe its existence to a statute. This must be the primary thing  which has  got  to  be  established.  Here  a distinction must be made between an 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. There have been a number of institutions  which though  not created  by or  under any statute have  adopted certain statutory provisions, but that by itself  is not,  in our opinion, sufficient to clothe the institution with  a statutory  character. In Sukhdev Singh & Ors. v.  Bhagatram Sardar  Singh Raghuvanshi  & Others  this Court clearly pointed out as to what constitutes a statutory body. In  this connection  my Lord A. N. Ray, C.J., observed as follows:           "A company incorporated under the Companies Act is      not  created  by  the  Companies  Act  but  comes  into      existence in accordance with the provisions of the Act.      It is  not a   statutory body because it is not created      by the statute. It is a body created in accordance with      the provisions of the statute." 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 1014 reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body. The  High Court,  in our  opinion,  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. In  fact the  Full Bench  of the  High Court relied on three circumstances  in order  to hold  that  the  Executive Committee was  a statutory  body,  viz.,  (i)  that  it  was affiliated to  the Agra  University which was established by the  statute;   (ii)  that   there  were  certain  mandatory provisions in  the Agra University Act which were binding on the  Executive  Committee;  and  (iii)  that  the  Executive Committee was  governed by  the statutes  framed by the Agra University. In  our opinion,  none of these factors would be



sufficient  to   alter  the  character  and  nature  of  the Executive Committee  and convert  it  into  a  full  fledged statutory body. To begin with the Executive Committee had an independent  status   having  been   registered  under   the Registration of  Co-operative Societies  Act and was a self- governed or  an autonomous  body. It  was affiliated  to the Agra University  merely for  the  sake  of  convenience  and mainly for the purpose that the courses of studies prevalent in the College may be recognised by the University.      Statute 11-A of the Agra University Hand-Book (1965-66) runs thus:           "Each   College   already   affiliated   or   when      affiliated, which  is  not  maintained  exclusively  by      Government must  be under the Management of a regularly      constituted  Governing   body  (which   term   includes      Managing Committee)  on which  the staff of the college      shall be  represented by  the Principal  of the college      and at  least one representative of the teachers of the      college  to  be  appointed  by  rotation  in  order  of      seniority  determined  by  length  of  service  in  the      college, who shall hold office for one academic year." All that  the statute  of the  Agra University  required was that the  Managing Committee  of the College must co-opt the Principal of  the College  and  one  representative  of  the teachers of  the college  by  rotation  as  members  of  the Committee. It  is manifest  that by  co-opting these members the Managing  Committee did  not lose its independent status but continued to remain a non-statutory and autonomous body. Similarly the  mere fact that the statutes of the University were adopted  by the  Managing Committee  and it  was  as  a matter  of   convention  bound   to  follow   the  statutory provisions  of   the  Act  would  not  clothe  the  Managing Committee with  a statutory status or character. In fact the adoption of  the statutes  was agreed  to by  the  appellant Executive   Committee    for    the    better    governance, administration and  extension of  the educational activities of the  institution. In  fact an  identical  argument  which forms the  basis of  the judgment  of the  Full Bench of the High Court  had been advanced before this Court and rejected outright. For  instance in Sabhajit Tewary v. Union of India & ors the question was whether the Council of Scientific and Industrial Research which 1015 was a  society registered  under the  Societies Registration Act, as  the present  appellant is, was a statutory body. It was  urged  that  because  the  Council  of  Scientific  and Industrial Research had government nominees as the President of the  body and derived guidance and financial aid from the Government, it  was  a  statutory  body  A.  N.  Ray,  C.J., rebutted these arguments and observed as follows:           "The Society  does not  have a statutory character      like the  Oil and  Natural Gas  Commission, or the Life      Insurance    Corporation    or    Industrial    Finance      Corporation. It is a society incorporated in accordance      with the  provisions of the Societies Registration Act.      The fact  that the  Prime Minister  is the President or      that the  Government appoints nominees to the Governing      Body  or   that  the   Government  may   terminate  the      membership will  not establish  anything more  than the      fact that  the Government  takes special  care that the      promotion, guidance  and co-operation of scientific and      industrial research,  the institution  and financing of      specific researched  establishment or  development  and      assistance to  special institutions  or departments  of      the  existing  institutions  for  scientific  study  of



    problems affecting  particular industry in a trade, the      utilisation of  the result  of the researches conducted      under  the   auspices  of   the  Council   towards  the      development of  industries in  the country  are carried      out in a responsible manner. Similar view was taken by this Court in Kumari Regina v. St. Aloysius Higher  Elementary School  & Anr.  where this Court observed as follows:           "But it  cannot  also  be  gainsaid  that  as  the      Government  has   the  power,   to  admit   schools  to      recognition and grants in-aid, it can, de hors the Act,      lay  down   conditions  under   which  it  would  grant      recognition  and   aid.  To   achieve  uniformity   and      certainty in  the exercise  of such executive power and      to avoid  discrimination, the  Government would have to      frame rules  which, however,  would be  in the  form of      administrative instructions  to its  officers,  dealing      with the  matters of recognition and aid. If such rules      were to  lay down conditions, the Government can insist      that satisfaction of such conditions would be condition      precedent to  obtaining recognition  and aid and that a      breach  or  non-compliance  of  such  conditions  would      entail either  the denial  or withdrawal of recognition      and aid.  The Management  of a school, therefore, would      commit a  breach or  non-compliance of  the  conditions      laid down  in the  rules  on  pain  of  deprivation  of      recognition and aid. The rules thus govern the terms on      which the  Government would  grant recognition  and aid      and the  Government can  enforce these  rules upon  the      management. But  the enforcement  of such  rules  is  a      matter between the Government and the management, and a      third party,  Hr such  as a  teacher aggrieved  by some      order of the manage- 1016      ment, cannot  derive from  the  rules  any  enforceable      right against  the management on the ground of a breach      or non compliance of any of the rules." This is  a case  which is almost on all fours with the facts of the  present case  because there the case was whether the school after  being recognised  by the  Government  for  the purpose of grant was bound to observe the rules.      In Indian  Airlines Corporation  v. Sukhdeo Rai, it was observed as follows:           "The  fact,   therefore,   that   the   appellant-      Corporation was  one set  up under and was regulated by      Act XXVII of 1953 would not take away, without anything      more, the  relation ship  between it  and its employees      from  the   category  of   purely  master  and  servant      relationship."      The Full  Bench of  the Allahabad  High Court, however, appears to  have placed  great reliance  on the decisions of this Court  in Prabhakar  Ramakrishna Jodh  v. A.L.  Pande & Anr. where  this Court  held that  the Governing Body of the College  in   that  case  was  a  statutory  body.  In  this connection, this Court observed as follows:           "On the  other hand,  we are  of opinion  that the      provisions of  Clause 8  of the  ordinance relating  to      security of  the tenure of teachers are part and parcel      of the  teachers’ service  conditions and,  as we  have      already pointed  out, the  provisions of  the  ’College      Code’ in this regard are validly made by the University      in exercise of the statutory power and have, therefore,      the force  and effect  of law.  It follows,  therefore,      that the  ’College Code’ creates legal rights in favour      of teachers  of affiliated  colleges and the view taken



    by the High Court is erroneous." This case,  however, is  clearly  distinguishable  from  the facts of  the present  case. To  begin with,  in P.R. Jodh’s case, this Court was dealing with the College Code which was itself a  creature of the statute, namely, the University of Saugar Act. Under ordinance No. 20 Para 1 the Governing body was created  by an  ordinance passed under the University of Saugar Act.  It is,  therefore, clear  that the statutes are the creature  of the  Act. Thus  the distinction  is that in P.R. Jodh’s  case the  Governing Body  was  the  Council  of Management established under the Act while here the Managing Committee is  not. It is obvious that the Governing Body was created under  a statutory  provision because  the ordinance had undoubtedly  a statutory  force having been passed under the Act. Para 2(i) (c) of the College Code runs thus:           "2.  (i)   In  this  ordinance,  unless  there  is      anything repugnant in the subject or context:-           (c)  ’Governing  Body’   means  the   Council   of                Management established  under this  ordinance                for the control and general management of the                ’College’." 1017 The Governing  Body was,  therefore, established  under  the ordinance itself  and had  no independent  existence at all. Similarly under  Para 3 of the ordinance the constitution of the Governing  Body was  laid down.  It is, therefore, clear that  not  only  was  the  Governing  Body  of  the  College established under the ordinance but even the constitution of the said  Governing Body  was laid  down  by  the  ordinance itself and  the functions of the Governing Body were clearly defined by  Para 4  of ,,  ordinance No.  20. The  ordinance itself was  called the  "College Code" which came into legal existence by  virtue of  the ordinance.  In other words, the position is  that before  ordinance No.  20 was passed under the University  Act, the  Governing Body had no existence at all. The  same, however,  could not  be said  of the present Managing Committee  which had its independent existence long before it was affiliated to the Agra University and had also its own  constitution, the  only exception  being  that  two members  had   to  be   taken  ex-officio  in  the  Managing Committee. There  is, therefore, world of difference between the nature  and manner of the establishment of the Governing Body under  the University  of Saugar  Act and  the Managing Committee in  the instant  case. Further more, this case was noticed and  discussed by  a later judgment of this Court in Vidya Ram  Mishra v.  Managing Committee,  Shri  Jai  Narain College and  was  distinguished.  Speaking  for  the  Court, Mathew, J., observed as follows:           "When once  this Court came to the conclusion that      the ’College  Code’ had  the force of law and conferred      rights on  the teachers  of  affiliated  colleges,  the      right to  challenge the  order terminating the services      of the  appellant, passed  in violation of clause 8(vi)      (a) of the ’College Code’ in a proceeding under Article      226 followed  ’as the  night the day‘ and the fact that      the  appellant   had  entered   into  a   contract  was      considered as immaterial.           *            *           *            *           On a  plain reading  of statute  151, it  is clear      that  only  provides  that  the  terms  and  conditions      mentioned therein  must be incorporated in the contract      to be  entered into between the college and the teacher      concerned.  It   does  not   say  that  the  terms  and      conditions have  any legal force, until and unless they      are embodied in an agreement. To put it in other words,



    the  terms  and  conditions  of  service  mentioned  in      Statute 151  have proprio  vigore no force of law. They      become terms  and conditions  of service only by virtue      of their  being incorporated  in the  contract. Without      the con- tract, they have no vitality and can Confer no      legal rights.           Whereas in  the case of Prabhakar Ramakrishna Jodh      v. A.  L. Pande  and another-[(1965) 2 S.C.R. 713], the      terms and  conditions of  service  embodied  in  clause      8(vi) (a)  of the  ’College Code’  had the force of law      apart from  the contract  and conferred  rights on  the      appellant  there,   here  the   terms  and   conditions      mentioned in  Statute 151 have no efficacy, unless they      are incorporated in a contract." 1018 It is,  therefore, clear  that in  P.  R.  Jodh’s  case  the College Code  was by  itself a  statutory Code  so that  the provisions of  the statute  operated proprio  vigore and did not depend  on the  execution of  the agreement  between the employer and the employee in accordance with the statutes of the University. In the instant case, which is very much like the case  in Vidya  Ram Mishra  (supra) the  statute  merely enjoined that  the agreement  between the  employer and  the employee should  be incorporated  according to  the form and conditions prescribed  by the  statute and  until  the  said agreement is  executed the  provisions of  the Statute would not apply  proprio vigore. The Allahabad High Court no doubt tried to  distinguish Vidya  Ram Mishra’s case, but with due respect, we  might observe that the distinction drawn by the High Court is a distinction without any difference. The High Court has  not considered  the two  basic facts  which  were present in  P.R. Jodh’s  case but  which were not present in the instant  case, viz.,  (1) that the governing body in the case dealt  with by  this Court  in P. R. Jodh’s case was in itself a  creature of  the statute;  and  (2)  that  in  the instant case  the statute  did not  apply proprio vigore but only after  an agreement  was executed  between the employer and the employee in accordance with the terms and conditions of the  statute. The High Court also failed to consider that there was  a concurrent  finding of  fact by  all the Courts below  that  the  plaintiff/respondent  never  executed  any agreement with the Executive Committee of the College in the form prescribed by the statutes of the Agra University Act.      Thus in  view of  the decisions of this Court regarding the circumstances under which the institution can be treated as a  statutory body  we are  unable to  agree with the view taken  by  the  Allahabad  High  Court  that  the  Executive Committee was  a statutory  body  merely  be  cause  it  was affiliated  to  the  University  or  was  regulated  by  the provisions of  the  University  Act  or  the  statutes  made thereunder. We  accordingly hold  that the  decision of  the Full Bench  of the  Allahabad High  Court on  this point  is legally erroneous and must be overruled.      This brings  us to  the next point for consideration as to whether  or  not  the  plaintiff/respondent’s  case  fell within the exceptions laid down by this Court to the general rule  that   the  contract   of  personal   service  is  not specifically enforceable.  In this  connection as  early  as 1964, in  S.R. Tewari v. District Board, Agra and Anr., this Court observed as follows:           "Under  the   common  law   the  Court   will  not      ordinarily force  an employer to retain the services of      an employee  whom he  no longer  wishes to  employ. But      this  rule   is  subject  to  certain  well  recognized      exceptions. It  is open to the Courts in an appropriate



    case to  declare that a public servant who is dismissed      from service  in contravention of Art. 311 continues to      remain in service, even though by so doing the State is      in effect forced to continue to employ the servant whom      it does  not desire  to  employ.  Similarly  under  the      industrial  law   jurisdiction  of   the   labour   and      industrial, 1019      tribunals to  compel the  employer to  employ a worker,      whom he  does not  desire to employ, is recognised. The      Courts are  also invested  with the  power  to  declare      invalid the  act of  a statutory  body, if by doing the      act the  body  has  acted  in  breach  of  a  mandatory      obligation imposed  by statute,  even if  by making the      declaration the body is compelled to do something which      it does not desire to do." To the  same  effect  is  the  decision  of  this  Court  in Executive Committee  of U.P.  State Warehousing  Corporation Ltd. v.  Chandra Kiran  Tyagi,  where  it  was  observed  as follows:           "From the two decisions of this Court, referred to      above, the  position in  law is  that no declaration to      enforce  a  con  tract  of  personal  service  will  be      normally granted. But there are certain well-recognized      exceptions to  this rule  and they are: To grant such a      declaration in appropriate cases regarding (1) A public      servant,  who   has  been  dismissed  from  service  in      contravention of  Art.  311.  (2)  Reinstatement  of  a      dismissed worker  under Industrial  Law  by  Labour  or      Industrial Tribunals.  (3) A statutory body when it has      acted in  breach of  a mandatory obligation, imposed by      statute;"      In Indian  Airlines Corporation  v. Sukhdeo Rai (supra) this Court also observed as follows:           "It is a well settled principle that when there is      a purported  termination of  a contract  of service,  a      declaration,  that   the  contract   of  service  still      subsisted, would  not be made in the absence of special      circumstances because  of the  principle that courts do      not ordinarily  grant specific  performance of service.      This  is   so,  even   in  cases  where  the  authority      appointing  an  employee  was  acting  in  exercise  of      statutory  authority.   The  relationship  between  the      person appointed  and the  employer would in such cases      be contractual,  i.e. as  between a master and servant,      and the  termination of  that  relationship  would  not      entitle  the   servant  to   a  declaration   that  his      employment had not been validly determined." To the  same effect is the decision of this Court in Bank of Baroda v  Jewan Lal  Mehrotra where  this Court  observed as follows:           "The law  as settled  by this  Court  is  that  no      declaration r to enforce a contract of personal service      will  be   normally  granted.   The   well   recognised      exceptions to  this rule are (1) where a public servant      has been  dismissed from  service in  contravention  of      Art. 311;  (2)  where  reinstatement  is  sought  of  a      dismissed worker  under the industrial law by labour or      industrial tribunals;  (3) where  a statutory  body has      acted in  breach of  a mandatory  obligation imposed by      statute;" 1020      In  the   Sirsi  Municipality’s  case  the  matter  was exhaustively reviewed and Ray, J., (as he then was) observed as follows:



         "The cases of dismissal a servant fall under three      broad heads,  purely by  contract  of  employment.  Any      breach of contract in such a case is enforced by a suit      for wrongful  dismissal and damages. Just as a contract      of employment  is not  capable of  specific performance      similarly breach  of  contract  of  employment  is  not      capable  of   founding  a   declaratory   judgment   of      subsistence of  employment. A  declaration of  unlawful      termination and  restoration to  service in such a case      of  contract  of  employment  would  be  indirectly  an      instance  of   specific  performance  of  contract  for      personal service. Such a declaration is not permissible      under the Law of Specific Relief Act.           The second  type of  cases of  master and  servant      arises under Industrial Law. Under that branch of law a      servant who  is wrongfully dismissed may be reinstated.      This is  a special provision under Industrial Law. This      relief is  a departure from the reliefs available under      the Indian  Contract Act  and the  Specific Relief  Act      which do not provide for reinstatement of a servant.           The third  category of cases of master and servant      arises in  regard to  the servant  in the employment of      the State  or of  other public  or local authorities or      bodies created under statute."      On a  consideration of the authorities mentioned above, it is, there fore, clear that 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. 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.  311  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 statutory body acts in breach or violation of the mandatory provisions of the statute.      In view  of our finding that the Executive Committee of the College  in the  instant case  was not a statutory body, the present  case does  not fall  within any of the excepted categories mentioned  above,  and  hence  prima  facie,  the plaintiff/respondent is  not entitled  to any declaration or injunction. The learned counsel for the respondent, however, placed great  reliance on  the decision  of  this  Court  in Municipality’s case  (supra) in  order to  contend that this decision had  included within  the fold  of its exceptions a fourth category,  namely, an  institution which  even though was a non-statutory body, but was a local 1021 or a  public authority.  Reliance was placed particularly on the following  observations of  Ray, J.,  as he then was, in that case:           "The third category of cases of master and servant      arises in  regard to  the servant  in the employment of      the State  or of  other public  or local authorities or      bodies created under statute.           In the  case of  servant of  the State or of local      authorities or  statutory bodies,  courts have declared      in appropriate cases the dismissal to be invalid if the      dismissal is contrary to rules of natural justice or if      the dismissal  is in violation of the provisions of the      statute."      Assuming for  the sake  of arguments,  but not deciding that this decision has extended the scope of the exceptions,



so that  the appellant  Executive Committee  though  a  non- statutory  body   will  still  be  bound  by  the  statutory provisions of law, let us see what is the position. It would appear that  under s.  25-C (2)  of the  Agra University Act corresponding to  similar provisions  in Kanpur  and  Meerut Universities Act of 1965 which runs thus:           "Every decision by the Management of an affiliated      college, other than a college maintained by Government,      to dismiss  or remove  from service  a teacher shall be      reported forthwith  to the  Vice-Chancellor and subject      to provisions to be made by the Statutes shall not take      effect  until   it  has  been  approved  by  the  Vice-      Chancellor." it was  incumbent on  the Executive Committee of the College to have  taken the  previous approval of the Vice-Chancellor before terminating the services of the plaintiff/respondent. Reliance  was   placed  by   the  learned  counsel  for  the respondent on  the words "shall not take effect until it has been approved  by the  Vice-Chancellor". It  was urged  that there has been an infraction of a mandatory provision of the Act itself  which is  undoubtedly binding  on the  appellant Executive Committee  and the  resolution  of  the  Executive Committee terminating  the services of the respondent is not only  invalid  but  completely  without  jurisdiction,  and, therefore,  the  plaintiff/respondent  is  entitled  to  the injunction  sought   for.  It  is  common  ground  that  the procedure enjoined  in sub-s.  (2) of  s. 25-C  of the  Agra University Act  was not  at all  followed by  the  Executive Committee and  there can  be no  doubt  that  the  Executive Committee has  been guilty  of this  default.  The  question remains whether  even if  there has  been a violation of the mandatory provisions  of  the  statute,  should  we  in  the exercise  of  our  discretion  grant  a  declaration  or  an injunction to the plaintiff/respondent in the peculiar facts and circumstances  of the  present case ? It is well settled that a  relief under  the  Specific  Relief  Act  is  purely discretionary and  can be  refused where the ends of justice do not  require the  relief to  be granted.  Mr.  Ramamurthi learned counsel  for the plaintiff/respondent submitted that the question  of discretion  would arise  only in case where the  High   Court  or   this  Court  is  acting  in  a  writ jurisdiction and  not in  a suit. We are, however, unable to agree with 1022 this argument  because the  exercise of  discretion is spelt out from  the provisions  of the Specific Relief Act and the common law  and it  applies as much to the writ jurisdiction as to other action at law.      In Jerome  Francis v.  Municipal Councillors  of  Kuala Lampur(1), Lord Morris observed as follows:           "In their  Lordships’ view  when there  has been a      purported  termination  of  a  contract  of  service  a      declaration to  the effect that the contract of service      still  subsists   will  rarely   be  made.  This  is  a      consequence of  the general  principle of  law that the      courts will not grant specific performance of contracts      of service.  Special  circumstances  will  be  required      before such  a declaration  is made and its making will      normally be  in the  discretion of  the Court. In their      Lordships’ view  there  are  no  circumstances  in  the      present case  which would make it either just or proper      to make such a declaration." Further  more   under  similar   circumstances  though   the dismissal of  the employee was by an authority which was not competent to  dismiss him,  namely, the  Municipal  Council,



their Lordships  of the  Privy Council  refused to grant the declaration in  view of the peculiar facts and circumstances of the  case which  caused hardship. The Privy Council in A. Francis v. Municipal Councillors of Kuala Lampur(1) observed as follows:           "Accepting, however,  the decision of the Court of      Appeal, which,  as has  been pointed  out, has not been      the subject of any cross-appeal, the position on Oct. 1      was that  the removal of the appellant was a removal by      the council  and not by the president. The council were      his employers,  but having  regard to the provisions of      the  ordinance   their  termination   of  his   service      constituted   wrongful   dismissal.   Their   Lordships      consider that  it is beyond doubt that on Oct. 1, 1957,      there was  de facto a dismissal of the appellant by his      employers,  the   respondents.  On  that  date  he  was      excluded from the council’s premises. Since then he has      not done  any  work  for  the  council.  In  all  these      circumstances it  seems to  their  Lordships  that  the      appellant  must  be  treated  as  having  been  wrongly      dismissed on  Oct. 1, 1957, and that his remedy lies in      a claim  for damages.  It would  be  wholly  unreal  to      accede to  the contention  that since  Oct. 1, 1957, he      had continued  to be  and that he still continues to be      in the employment of the respondents."      As against this position Mr. Ramamurthi counsel for the plaintiff/ respondent  submitted  that  in  Hill  v.  C.  A. Parsons &  Co. Ltd.  (3) a  declaration that the termination was invalid was granted by the Court. In that case, however, it was pointed out that the declaration was 1023 granted under  very special circumstances of that case where the employee  was said  to be removed from service almost at the fag end of his career after serving for 35 years when he was due  to retire  only two  years  later.  In  that  case, however, Lord  Denning laid  down that in the absence of any special circumstances,  a declaration should not be granted. It is  clear that  in the  instant case  the respondent  had worked  in   the  College  for  only  two  years.  In  these circumstances, therefore, this case does not appear to be of any assistance to the respondent.      In R.  T. Rangachari v. Secretary of State for India in Council(1) the Privy Council observed as follows:           "But, although  their  Lordships  differ  in  this      important matter  from the reasoning and conclusions of      the Courts below, they are not on the whole prepared to      direct that a declaration on this point should be made.      The questions  of fact  and law  are now decided, and a      declaration could  have  no  greater  effect  than  the      decision itself.  After this  lapse of time, and having      regard  to   his  health,  no  one  suggests  that  the      appellant can  now be  restored to  his office, and the      matter of pension and the responsibility of doing right      in that  regard rests with the Government. Accordingly,      their Lordships  agree in  the view of the Courts below      that no  order or  declaration should  be made  in this      action."      A Division  Bench of the Allahabad High Court in Mahant Indra Narain  Das v. Mahant Ganga Ram Das & Anr.(2) observed as follows:           "The second thing to be noted is that the court is      given a  discretion to  make the declaration sought and      the plaintiff  need not ask for any further relief. The      relief being  discretionary, no  person can  claim  the      declaration as of right."



    Similarly in  Bhairabendra Narayan  Bhup  v.  State  of Assam (3), a Division Bench of the Assam High Court observed as follows:           "It  must   be  remembered  that  the  declaration      claimed under  s. 42  lies entirely within the judicial      discretion of  the Court  and is  to be  exercised with      caution according  to the  exigencies of  a  particular      case.  A  party  cannot,  as  of  right  claim  such  a      declaration, because  such a  relief  is  more  in  the      nature of  an equitable  relief than a legal remedy. It      has  been  repeatedly  held  that  a  Court  should  be      circumspect as  to the declaration it makes, and futile      declarations should be always avoided."      Apart from  these decisions  it would  appear  that  s. 20(1) of  the Specific  Relief  Act  clearly  codifies  this principle and may be extracted as follows:           "20.  (1)  The  jurisdiction  to  decree  specific      performance is  discretionary, and  the  court  is  not      bound to  grant such relief merely because it is lawful      to do so; but the discretion 1024      of the court is not arbitrary but sound and reasonable,      guided by judicial principles and capable of correction      by a court of appeal." Similarly s.  34 of  the Specific  Relief Act  also gives  a discretion to  the Court  to give a declaration of the legal character. Section 34 runs thus:           "Any person entitled to any legal character, or to      any right  as to  any property,  may institute  a  suit      against any  person denying, or interested to deny, his      title to  such character or right, and the court may in      its discretion make therein a declaration that he is so      entitled, and  the plaintiff  need not in such suit ask      for any further relief:           Provided  that   no  court  shall  make  any  such      declaration where  the plaintiff,  being able  to  seek      further relief  than a mere declaration of title, omits      to do so.           Explanation.-A trustee  of property  is a  "person      interested to  deny" a  title adverse  to the  title of      someone who  is not  in existence,  and for whom, if in      existence, he would be a trustee."      It seems  to us that neither the First Additional Civil & Sessions  Judge nor  the High  Court, while  decreeing the plaintiff’s suit,  considered  this  aspect  of  the  matter whether this  was a  fit case in which the discretion should have been  exercised in  favour of  the  respondent.  It  is manifestly clear  from the  authorities discussed above that the  relief   of  declaration   and  injunction   under  the 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  debito justitiae. The Court has to administer justice  between the  parties and  cannot convert itself into  an instrument  of injustice  or  an  engine  of oppression. In  these circumstances,  while  exercising  its discretionary powers  the Court  must keep  in mind the well settled  principles  of  justice  and  fairplay  and  should exercise the  discretion only if the ends of justice require it, for  justice is  not an object which can be administered in vacuum.      The admitted  facts in the present case, which will put the Court  on its  guard, while exercising its discretion to grant a declaration or injunction are as follows:           (1)  That  the   plaintiff/respondent  served  the



              institution for  a short  period of two years                only i.e. from 1964 to 1966 and thereafter he                was bereft of all his powers and did not work                in the College for a single day.           (2)  That if  the declaration  sought for  or  the                injunction     is      granted     to     the                plaintiff/respondent the result would be that                he would have to be paid his full salary with                interest and  provident fund  for  full  nine                years i.e.  from 1966 to 1975, even though he                had not  worked  in  the  institution  for  a                single day during this period. 1025           (3)  That  consequent  upon  the  declaration  the                appellant would  have  to  pay  a  very  huge                amount running  into  a  lakh  of  rupees  or                perhaps  more   as  a  result  of  which  the                appellant and  the institution  would perhaps                be  completely   wiped  out  and  this  would                undoubtedly work  serious  injustice  to  the                appellant because it is likely to destroy its                very existence.           (4)  It is  true that  the plaintiff/respondent is                not at  fault, but  the stark realities, hard                facts and  extreme hardship of the case speak                for themselves.           (5)  It   appears    that   by   virtue   of   the                interlocutory orders  passed by  this  Court,                the  appellant   has  already  deposited  Rs.                9,000/- before the High Court which was to be                withdrawn  by  the  respondent  after  giving                security, and  a further  sum of  Rs. 9,100/-                being the  salary of  13 months has also been                deposited by  the appellant  before the Trial                Court under  the orders  of this Court. It is                also stated by counsel for the appellant that                the appellant has deposited Rs. 3,000/- more.                We  feel   that  in   the  circumstances  the                respondent may  be permitted  to  keep  these                amounts with  him and he will not be required                to refund  the same  to  the  appellant.  The                amount of  deposit in  the High Court, if not                withdrawn  by   the  respondent  may  now  be                withdrawn by  him without any security and if                he has  already withdrawn  the amount he will                be discharged  from the  security. This  will                vindicate the  stand of  the  respondent  and                compensate him for any hardship that may have                been caused  to him  by the order terminating                his services,  and will  also put  a stamp of                finality to  any further  litigation  between                the parties. In view  of these special and peculiar circumstances of this case, we  feel that  it will  not be  a proper  exercise  of discretion to  grant a decree for declaration and injunction in favour of the respondent.      The appeal  is accordingly  allowed. We  set aside  the order passed  by the  High Court  and the  First  Additional Civil &  Sessions Judge,  dismiss the  plaintiff’s suit  and restore  the   judgment  of   the  Trial   Court.   In   the circumstances of  the case  the parties  will bear their own costs throughout.      BHAGWATI, J.  I agree  with the final order proposed by my learned  brother Fazal Ali, J., but I would like to state my own  reasons for  reaching  that  conclusion.  The  facts



giving rise  to the  appeal have  been fully  set out in the judgment of  my learned  brother and  it would  be a  futile exercise to  restate them.  I will  straight away proceed to consider the  question of law which arises for determination in the  appeal. The  question is, whether the termination of the service  of the first respondent by the appellant was in violation  of  Statute  30  of  the  Statutes  of  the  Agra University which applied to the appellant at 1026 the material  time, and  in any  event, the  termination was ineffective and  inoperative as  it was  not approved by the Vice-Chancellor as  required by  s. 28,  sub-s. (3)  of  the Kanpur and  Meerut Universities  Act, 1956,  and  in  either case,  whether  the  first  respondent  was  entitled  to  a declaration that  the termination was null and void so as to warrant a  declaration that  he continued  in the service of the appellant,  or, his claim merely lay in damages. It is a question of some importance.      I will first take up the first part of the question. On this part, there was no dispute between the parties that the requirements of  Statute 30  were not  complied with  by the appellant  in   terminating  the   service  of   the   first respondent.  The   controversy  merely  centered  round  the question whether the termination of service in breach of the requirements of Statute 30 rendered the termination null and void so  as to entitle the first respondent to a declaration that he  continues in  service or  it amounted  merely to  a breach of  contract giving  rise to a claim for damages. Let me first  examine this  question on principle before turning to the  decided cases.  There are  two distinct  classes  of cases  which   might  arise  when  we  are  considering  the relationship between employer and employee. The relationship may be governed by contract or it may be governed by statute or statutory  regulations. When  it is governed by contract, the question  arises whether  the general  principles of the Law of Contract are applicable to the contract of employment or the  law  governing  the  contract  of  employment  is  a separate and sui generis body of rules. The crucial question then is  as to  what is  the effect  of repudiation  of  the contract of  employment by  the  employer.  If  an  employer repudiates the  contract of  employment  by  dismissing  his employee, can the employee refuse to accept the dismissal as terminating the  contract and  seek to treat the contract as still subsisting  ? The  answer to  this question  given  by general contract  principles  would  seem  to  be  that  the repudiation is of no effect unless accepted, in other words, the contracting  party faced with a wrongful repudiation may opt to  refuse to  accept the  repudiation and  may hold the repudiator to  a continuance  of his contractual obligation. But does  this rule  apply to  wrongful repudiation  of  the contract of employment ? The trend of the decisions seems to be that  it does  not. It  seems to  be generally recognized that wrongful  repudiation of  the contract of employment by the employer  effectively  terminates  the  employment:  the termination being  wrongful, entitles  the employee to claim damages, but  the  employee  cannot  refuse  to  accept  the repudiation and  seek to treat the contract of employment as continuing. What is the principle behind this departure from the general rule of law of contract ? The reason seems to be that a contract of employment is not ordinarily one which is specifically  enforced.   If  it   cannot  be   specifically enforced, it  would be futile to contend that the unaccepted repudiation is  of no  effect and  the contract continues to subsist between  the  parties.  The  law  in  such  a  case, therefore, adopts  a more  realistic posture  and holds that



the repudiation  effectively terminates the contract and the employee can  only claim  damages for wrongful breach of the contract. Now  a contract  of employment is not specifically enforced because  ordinarily it  is a  contract of  personal service and, 1027 as pointed out in the first illustration to clause (b) of s. 21 of  the Specific Relief Act, 1877, a contract of personal service cannot  be specifically  enforced.  Of  course  this illustration has now been omitted in the new Specific Relief Act, 1963  and what would be the effect of such omission may be a  point which may require consideration some day by this Court. But  for the  purpose of this case, I will proceed on the assumption  that even  under the new Act, the law is the same and  it frowns on specific enforcement of a contract of personal service.  Now what  is the  rationale  behind  this principle ?  That is  found stated in the locus classicus of Fry, L.J., in De Francesco v. Barnum(1):           "For my  own part,  I should  be very unwilling to      extend decisions  the effect  of  which  is  to  compel      persons who  are not desirous of maintaining continuous      personal relations  with one  another to continue those      personal relations.  I have  a strong  impression and a      strong feeling that it is not in the interest of making      that  the   rule  of  specific  performance  should  be      extended to such cases. I think the Courts are bound to      be jealous,  lest they should turn contracts of service      into contracts  of slavery; and therefore, speaking for      myself, I  should lean  against the  extension  of  the      doctrine of specific performance and injunction in such      a manner." This rationale obviously can have application only where the contract of  employment is  a contract  of personal  service involving personal  relations. It  can have little relevance to conditions  of employment  in modern large-scale industry and enterprise  or statutory  bodies or  public  authorities where there is professional management of impersonal nature. It is difficult to regard the contract of employment in such cases as  a contract of personal service save in exceptional cases. There is no reason why specific performance should be refused  in  cases  of  this  kind  where  the  contract  of employment  does   not  involve   relationship  of  personal character. It  must be  noted that  all these  doctrines  of contract   of    service   as    personal,   non-assignable, unenforceable, and  so on,  grew  up  in  an  age  when  the contract  of   service  was  still  frequently  a  "personal relation" between  the owner of a small workshop or trade or business and  his servant.  The conditions  have now  vastly changed  and   these  doctrines  have  to  be  adjusted  and reformulated in  order to  suit needs of a changing society. We cannot  doggedly  hold  fast  to  these  doctrines  which correspond to  the social realities of an earlier generation far removed  from  ours.  We  must  rid  the  law  of  these anachronistic doctrines  and bring  it in  accord "with  the felt necessities  of the  times". It  is interesting to note that  in   Fry’s  classic   work  on  Specific  Performance, contracts of  service appear in a small group under the sub- heading "Where enforced performance would be worse than non- performance". We may ask ourselves the question: for whom it would be  worse and for whom it would be better. Where, in a country like  ours, large  numbers of  people are unemployed and  it  is  extremely  difficult  to  find  employment,  an employee who  is discharged  from service may have to remain without means  of subsistence  for a  long period  of  time. Damages equivalent to one or two months wages



1028 would be  poor consolation  to him.  They  would  be  wholly insufficient  to   sustain  him   during   the   period   of unemployment following upon his discharge. The provision for damages for  wrongful termination of service was adequate at a time  when an employee could without difficulty find other employment within  the period of reasonable notice for which damages were  given to  him. But in conditions prevailing in our   country,   damages   are   a   poor   substitute   for reinstatement: they  fall far short of the redress which the situation requires.  To deny reinstatement to an employee by refusing specific  performance in  such a  case would  be to throw him  to the  mercy of  the employer: it would enshrine the power of wealth by recognising the right of the employer to fire an employee by paying him damages which the employer can afford to throw away but which would be no recompense to the employee.  It is,  therefore, necessary and I venture to suggest, quite  possible, within  the limits of the doctrine that a  contract of  personal service cannot be specifically enforced, to  take the view that in case of employment under a  statutory  body  or  public  authority,  where  there  is ordinarily no element of personal relationship, the employee may refuse  to accept  the repudiation  of the  contract  of employment by  the statutory  body or  public authority  and seek reinstatement  on the  basis that  the  repudiation  is ineffective and  the contract  is  continuing.  That  is  in effect what  happened in  the case of McClalland v. Northern lreland General  Health Service  Board(1).  The  plaintiff’s contract in  this case was really one of master and servant, the only  special condition  being that  her post  had  been advertised as  "permanent and  pensionable" and  it provided specific reasons, such as gross misconduct and inefficiency, for which  she  might  be  dismissed.  The  defendant  Board introduced a rule after her appointment that women employees must resign on marriage and since the plaintiff got married, the respondents  terminated her  service by giving what they thought was  a reasonable  notice. The  plaintiff  contended that the  defendant Board  was not entitled to terminate her service  and   claimed  a  declaration  that  the  purported termination was  null and void and she continued in service. The House  of Lords held that the contract was exhaustive as regards the  reasons for  which  the  defendant-Board  could terminate the  service of  the plaintiff  and since  none of those reasons admittedly existed, the termination of service of the petitioner by the defendant-Board was nullity and the plaintiff continued  in service of the defendant-Board. This was a  case of a pure contract of master and servant and yet the House  of Lords  held that the termination of employment of the  plaintiff  by  the  defendant-Board  which  was  not accepted by  the plaintiff was ineffective and the plaintiff was entitled to a declaration that she continued in service. It should  thus be possible to hold that even if a statutory body or  public  authority  terminates  the  service  of  an employee in breach of a contractual obligation, the employee could disregard  the termination  as ineffective and claim a declaration that  his service  is continuing. But this would be a somewhat novel and unorthodox ground which has not been recognised by any decision of this 1029 Court so  far and  moreover I  do not  think that, on facts, this is a proper case in which it would really be applicable and hence I do not propose to finally pronounce upon it.      The second  category  of  cases  are  those  where  the relationship  between  the  employer  and  the  employee  is governed by  statute or  sub-ordinate legislation, and where



such is  the case,  the termination, which is the same thing as repudiation,  may, in a given situation, be null and void and in  that event,  it would not have the effect of putting an end to the contract and the employee would be entitled to a declaration  that his  service is continuing. The doctrine that a  contract of  personal service cannot be specifically enforced would not stand in the way of the employee, because the  termination   being  null  and  void,  there  being  no repudiation at  all in the eye of the law, there would be no question of  enforcing specific  performance of the contract of employment. What the employee would be claiming in such a case is  not enforcement  of a  contract of personal service but declaration  of statutory  invalidity of  an act done by the employer.  The case  would be  of a kind similar to that decided by  the Judicial  Committee of  the Privy Council in High Commissioner  for India  v. I. M. Lail(1) the essential feature of  which was aptly and succinctly described by this Court in  Dr. S.  B. Dutt v. University of Delhi(2) in these words:           "That was  not a  case  based  on  a  contract  of      personal service...  The declaration  did not enforce a      contract of personal service but proceeded on the basis      that the  dismissal could  only be effected in terms of      the statute  and as  that had  not been  done, it was a      nullity,  from  which  the  result  followed  that  the      respondent had  continued  in  service.  All  that  the      Judicial Committee  did in  this case  was  to  make  a      declaration of  a statutory invalidity of an act, which      is a thing entirely different from enforcing a contract      of personal service." Where, for example, the termination is outside the powers of a statutory  body either  because the  statutory body has no power to terminate the employment or because the termination is effected  in breach  of a mandatory obligation imposed by law which  prescribes that the termination shall be effected only in  a particular  manner and  no other,  it would  be a nullity and  the employee would be entitled to ignore it and ask for being treated as still in service. such was the case in Life  Insurance  Corporation  of  India  v.  Sunil  Kumar Mukherjee(3) where  an order  of termination  of service  of certain employee by the Life Insurance Corporation in breach of clauses 10(a) and 10(b) of an order passed by the Central Government under  s. 11(g) of the Life Insurance Corporation Act, 1956,  was held  to be null and void on the ground that it was  not effected  in terms of clauses 10(a) and 10(b) of the Statutory Order. So also in Mafatlal Barot v. Divisional Controller, State  Transport, Mahsana(4),  this  Court  held that an  order of  termination of service passed against the petitioner in contravention of 1030 clause 4(b)  of Schedule  ’A’ to the Regulations made by the State Road  Transport  Corporation  in  exercise  of  powers conferred under  s. 45  of the  Road Transport  Corporations Act, 1950  was bad  in law  and it  was quashed by issuing a writ of certiorari. This principle was also approved by this Court in  B. N.  Tewari v. District Board, Agra(1) though it was held  there, on facts that the dismissal of the employee was proper  and justified.  Shah, J.,  speaking on behalf of this Court  in  that  case  recognised  this  principle  and treated it  as a  third exception to the general rule in the following words:           "Under  the   common  law   the  Court   will  not      ordinarily force  an employer to retain the services of      an employee  whom he  no longer  wishes to  employ. But      this  rule   is  subject   to  certain  well-recognised



    exceptions. It  is open to the Courts in an appropriate      case to  declare that a public servant who is dismissed      from service  in contravention of Article 311 continues      to remain in service, even though by so doing the State      is in  effect forced  to continue to employ the servant      whom it  does not desire to employ. Similarly under the      industrial  law,   jurisdiction  of   the  labour   and      industrial tribunals to compel the employer to employ a      worker  whom   he  does   not  desire   to  employ,  is      recognised. The Courts are also invested with the power      to declare  invalid the  act of a statutory body, if by      doing the  act the  body  has  acted  in  breach  of  a      mandatory obligation  imposed by  statute, even  if  by      making the  declaration the  body is  compelled  to  do      something which it does not desire to do." This position  in law  was reiterated  by this Court in U.P. State Warehousing Corporation v. C. K. Tyagi(2) where, after referring to  Dr. Dutt’s  case  and  S.  R.  Tewari’s  case, Vaidialingam, J., observed:           "From the  two decisions of this Court referred to      above, the  position in  law is  that no declaration to      enforce a contract of personal service will be normally      granted.  But   there   are   certain   well-recognised      exceptions to  this rule  and they are: To grant such a      declaration in appropriate cases regarding (1) a public      servant,  who   has  been  dismissed  from  service  in      contravention of  Art.  311.  (2)  Reinstatement  of  a      dismissed worker  under Industrial  Law  or  Labour  or      Industrial Tribunals.  (3) A statutory body when it has      acted in  breach of  a mandatory obligation, imposed by      statute." This statement  of law was reaffirmed again by this Court in Indian Airlines  Corporation v.  Sukhdeo Rai (3) and Bank of Baroda v. Jewan Lal Mehrotra(4).      Now, two  questions immediately arise for consideration on this  statement  of  law.  The  first  is,  what  is  the ’statutory body’  contemplated in  these decisions,  and the second is, are the three exceptions formulated by this Court intended to be exhaustive ? When we are trying to understand what is the ’statutory body’ which this Court had in 1031 mind when  it laid  down this  statement of  law, it must be remembered that  a statement of law enunciated by this Court must be read in the light of the principle which it seeks to effectuate and  it should  not be  construed as if it were a section. The  third exception  is intended  to  cover  cases where by reason of breach of mandatory obligation imposed by law, as  distinct from  contract, the termination of service is null  and void  so that there is in law no repudiation at all. That  is the  principle on which the third exception is based and  it is  in the  light of  this principle  that the expression ’statutory  body’ used  by this  Court has  to be understood. Now,  obviously, a  body or authority created by statute would  be a  statutory body,  but  even  a  body  or authority which  is created under a statute, as for example, the State Road Transport Corporation which is created by the State under  the Road Transport Corporation Act, 1950, would also be  a statutory  body. What  other kinds  of  statutory bodies  would   be  included  is  a  matter  not  free  from difficulty. But  in any  event it does appear to me that the three exceptions  formulated in  the statement  of law  laid down by  this Court  in the above decisions are not intended to be and cannot be exhaustive. The categories of exceptions to the  general rule  should  not  be  closed,  because  any attempt at  rigid and exhaustive formulation of legal rules-



any attempt  to put  law in a strait jacket formula-is bound to stifle  the growth  of  law  and  seriously  cripple  its capacity to  adapt itself  to the changing needs of society. In fact, Ray, J., as he then was, speaking on behalf of this Court in  Sirsi Municipality  v. Kom  Francis(1) pointed out that the  third exception  applied not  only to employees in the service  of "bodies created under statutes", but also to those  in   the  employment   of  "other   public  or  local authorities". It  may be  a possible  view-and some day this Court may  have to  consider it-that  where law, as distinct from contract,  imposes a  mandatory obligation  prescribing the kind  of contract  which  may  be  entered  into  by  an employer and  the manner  in which  alone the  service of an employee may  be  terminated,  any  termination  of  service effected in  breach of  such statutory  obligation would  be invalid and  ineffective and  in such  a case  the court may treat it  as null  and void. But I do not think it necessary to pursue  this line of discussion any further and come to a positive conclusion  whether the  appellant is  or is  not a statutory body  or a  public authority  nor do I consider it necessary to  go into  the question  whether the Statutes of the Agra  University had  the force  of  law  and  conferred rights on the Principal and teachers of affiliated colleges, as in  Prabhakar Ramakrishna  Jodh v. A. L. Pande & Anr.(2), or they  only set  out the terms and conditions which had no validity and  conferred no  legal rights,  unless and  until they were  embodied in the contract between the principal or teacher on  the one  hand and  the affiliated college on the other as in Vidya Ram Mishra v. Managing Committee, Shri Jai Narain Conege(3). I take the view that on the second part of the question  the case  of  the  first  respondent  is  well founded.      It was  common ground  between the  parties that at the material time  the  Statute  which  was  applicable  to  the appellant was the Kanpur and 1032 Meerut Universities  Act, 1965.  Section 28,  sub-s. (3)  of this Act  declares that  every decision by the management of an affiliated  college to  dismiss or  remove from service a teacher shall  be reported  forthwith to the Vice-Chancellor and subject  to the  provisions contained  in  the  Statutes shall not  take effect  unless it  has been  approved by the Vice-Chancellor. The  language of  this section  is absolute and peremptory  and leaves  no doubt  as to  its meaning and effect. It  provides in terms clear and unambiguous that the termination of  service of a teacher by the management shall not take  effect, that  is,  it  shall  be  ineffective  and inoperative unless the Vice-Chancellor on being informed has approved of  it. When  this section,  which is a law made by the  Legislatures,  has  enacted  that  the  termination  of service shall  be ineffective  or, in  other words, it shall have no validity or force unless it has been approved by the Vice-Chancellor, it  is difficult  to  see  how  it  can  be regarded as  effectively terminating  the service.  To  take such a  view would  be to  refuse to  give effect to the law enacted by  the Legislature. The law enacted in this section operates, irrespective whether the management is or is not a statutory body.  Such a consideration is entirely irrelevant to the  applicability of this section. When the section says that the  termination of  service shall not have any effect, the Court  must refuse to recognise the termination as valid and effective,  and  when  the  Court  does  so,  it  merely enforces the  law and  there is no question of transgressing the principle  that a contract of personal service cannot be enforced.  There  can,  therefore,  be  no  doubt  that  the



termination of  service  of  the  first  respondent  by  the appellant was ineffective and void and it did not operate to put an end to the employment, even wrongful, by reason of s. 28, sub-s.  (3) of  the Kanpur  and Meerut Universities Act, 1965.      The first respondent, on this view, would ordinarily be entitled to  the declaration  and injunction  prayed for  by him, but  the relief  of declaration  and  injunction  being discretionary, I  agree with  the view taken in the judgment of my  learned brother  Fazal Ali, J., that having regard to the peculiar  facts and circumstances of the present case as set out  in his  judgment, this  is not  a proper case where such relief  of declaration  or injunction should be granted to the  first respondent:  instead, the  aggregate amount of Rs. 21,100/-  deposited by  the appellant in the Court would be fair  and just  compensation  to  the  first  respondent. However, I  must hasten  to make it clear that ordinarily an employee whose  termination of  service is  found to be null and void  or ineffective by reason of a statutory provision, and that would include subordinate legislation which has the force of  law, should  be  awarded  a  declaration  that  he continues in service and it should be no ground for refusing him such  declaration that  before his purported termination of service,  he was  in employment  only for a short period. That would  be denying  him security of tenure which the law seeks to  give him  in clear  and unambiguous terms. But, in the present case, the circumstance which weighs most with me in refusing to exercise my discretion in favour of the first respondent  is   that  if  the  relief  of  declaration  and injunction is  granted to  the  first  respondent,  it  will involve the  appellant in  a financial liability of over Rs. One lakh and that would wipe out the educational institution of the appellant or in any 1033 event seriously  cripple it  and that,  in its  turn,  would prejudicially affect  the interests of the student community which is  an important  consideration which the Court cannot fail to  take into  account while  determining what  are the broad considerations  of social justice which must guide its exercise of discretion.      I accordingly agree with the final order proposed by my learned brother. V.P.S.                                       Appeal allowed. 1034