JUDGMENT
D. K. Seth, J.
1. The opposite party Nos. 6 to 13 had filed Original Suit No. 55 of 1995 for certain reliefs with regard to their employment as teacher and peon respectively in the concerned school which Is not included in the grant-in-aid scheme of the Government. In connection with the said suit, an application for injunction was filed. The trial court by
an order dated 8th May, 1995 had passed an order of Injunction restraining the petitioners from Interfering with the services of the plaintiffs and also to pay their salary regularly and from appointing any other person in the place and stead of the plaintiffs. An appeal was preferred by the Manager of the Committee of the school describing himself by his personal name and the Principal who was also described in her personal name. The said appeal has since been dismissed against which this writ petition has been moved.
2. On the prayer of Mr. Rajeev Mfsra, learned counsel for the applicants, this petition has since been permitted to be converted into one under Article 227 of the Constitution of India, Mr. Misra had contended that the relief that has been sought for in the suit cannot be maintained in a civil court in view of the provision contained in Section 14 of the Specific Relief Act read with Section 41 of the said Act.
3. Dr. Padia on the other hand contended that this question cannot be gone into at this stage in Connection with the determination of the question of grant of injunction. He then contended that even If this question Is raised, still then a suit is very much maintainable. In as much as it is not a suit seeking relief of reinstatement. It is only a suit relating to the prayer for injunction restraining the respondents from Interfering with their services and for payment of salaries. According to him, so far as the payment of salary is concerned, a civil suit is very much maintainable and the other prayers are consequential relief which does not determine the character of the relief sought for. He further contends that a prima-facie case has been made out and both the Courts were justified in granting relief In the form of injunction during the pendency of the suit subject to final decision.
4. I have heard both the counsel at length.
5. The prayers that have been made in the plaint are that the
defendants shall be restrained by an order of Injunction permanently from Interfering with the services of the plaintiffs and from terminating their services and/or appointing any other candidates in their place and stead and also to continue to pay their salary.
6. The above prayer clearly Indicates that the relief sought for is in relation to the enforcement of contract of service namely, that they may be continued in service and their services may not be terminated. Under clause (d) sub-section (1) of Section 14, a contract the performance of which involves the performance of a continuous duty which the Court cannot supervise, cannot be specifically enforced. In fact, the plaintiffs had sought enforcement of their contract of service which requires volition of the parties as well as a continuous duty which is hit by clause (d) sub-section (1) of Section 14 of the Specific Relief Act read with Section 41(e) of the said Act. This question has to be gone into in order to find out whether a prima fade case has been made out or not. In order to grant an order of injunction, the Court has to look into the question as to whether the plaintiff has been able to make out a prlma facie case or not. The relief sought for and the maintainability of the suit is also one of the factors that is to be taken into consideration. In case, it appears that such a suit cannot be maintained and an injunction to such an extent cannot be granted In that event, this question can very well be gone into. In the present case as it appears to be hit by the provision of Section 14(1)(d) read with Section 41(e) of the Specific Relief Act. It is apparent that injunction that has been granted could not be granted. In view of the situation as is apparent from the facts and circumstances of the case, the plaintiffs might have other remedies available in different forum but that is neither here nor there.
7. Then again Order XXXIX, Rule 2, sub-rule (2) as applicable in Uttar Pradesh introduced a proviso through U. P. Act 57 of 1976. The said proviso provides that no injunction shall be granted, in clause (b). "to stay the operation for .....
dismissal, removal or otherwise termination of service of, or taking charge from, any employee including any employee of the Government”. Thus, by reason of such amendment, no injunction could not granted staying the operation of an order of dismissal, removal or otherwise termination of service or of taking charge from an employee. In the present case, no such order has yet been passed. But the effect of injunction would be to restrain the employee from passing such an order. If no injunction can be granted, then the said proviso cannot be circumvented by passing an order of injunction before such an order is passed. If such an injunction is granted, it would, in effect, in a round about method contravene the prohibition contained in clause (b) of the proviso. In as much as when an order cannot be stayed even when It is passed, then there cannot be any scope of staying/passing of such an order or restraining the authority from passing any such order. It would have the same effect. The intention of the Legislature in incorporating the proviso is clear and unambiguous to the extent that civil court would not Interfere with such matter having regard to Section 14(1)(d) read with Section 41(e) of the Specific Relief Act. It is in effect an incorporation of a provision to effectuate the provision provided in Section 14(1)(d) read with Section 41(e) of the Specific Relief Act. since otherwise it is forbidden or not permissible by reason of the condition contained in the Specific Relief Act. Therefore, the proviso (b) to Order XXXIX. Rule 2 sub-rule (2) has to be reconciled and interpreted to further the object and purpose for which the proviso was inducted. Therefore, the embargo provided in the proviso (b) to Order XXXIX, Rule 2 sub-rule (2) cannot be overlooked and as soon a case comes in conflict with the said proviso, no injunction can be granted.
8. In such circumstances, the order dated 8th May, 1995 passed by the learned Civil Judge, Deoria in Suit No. 55 of 1995 since been affirmed by the order dated 11th August. 1999, passed by the learned Additional District Judge. 8th Court. Deoria in Misc. Civil Appeal No. 95 of 1995 are hereby set aside. This petition under Article 227 of the Constitution of India is thus allowed.
9. At this stage Dr. Padia contends that the plaintiffs have really been non-suited by reason of the order that has been passed. In such circumstances. It will be open to the plaintiffs to take appropriate steps if they are so advised to withdraw the suit and approach the appropriate forum for appropriate relief without prejudice to their rights and contentions. The withdrawal of the proceedings of the suit will in no way affect the rights of the parties if they seek relief before the appropriate forum. The observations made here shall not affect the rights of the parties, if sought for In any forum other than the civil court excepting the recovery of salary for the services rendered, which can be maintained in the civil court.