{"id":248512,"date":"1989-12-08T00:00:00","date_gmt":"1989-12-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kayastha-pathshala-allahabad-vs-rajendra-prasad-and-anr-on-8-december-1989"},"modified":"2015-12-04T11:06:38","modified_gmt":"2015-12-04T05:36:38","slug":"kayastha-pathshala-allahabad-vs-rajendra-prasad-and-anr-on-8-december-1989","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kayastha-pathshala-allahabad-vs-rajendra-prasad-and-anr-on-8-december-1989","title":{"rendered":"Kayastha Pathshala, Allahabad … vs Rajendra Prasad And Anr on 8 December, 1989"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kayastha Pathshala, Allahabad … vs Rajendra Prasad And Anr on 8 December, 1989<\/div>\n
Equivalent citations: 1990 AIR 415, 1989 SCR Supl. (2) 450<\/div>\n
Author: K Shetty<\/div>\n
Bench: Shetty, K.J. (J)<\/div>\n
           PETITIONER:\nKAYASTHA PATHSHALA, ALLAHABAD ANDANR. ETC. ETC.\n\n\tVs.\n\nRESPONDENT:\nRAJENDRA PRASAD AND ANR.\n\nDATE OF JUDGMENT08\/12\/1989\n\nBENCH:\nSHETTY, K.J. (J)\nBENCH:\nSHETTY, K.J. (J)\nAHMADI, A.M. (J)\n\nCITATION:\n 1990 AIR  415\t\t  1989 SCR  Supl. (2) 450\n 1989 SCC  Supl.  (2) 732 JT 1989  Supl.    381\n 1989 SCALE  (2)1394\n\n\nACT:\n    Labour  & Services: Educational  institution  registered\nunder  the  Societies  Registration  Act<\/a>--Reinstatement\t  of\ndismissed official by Court--Consideration to be taken\tinto\naccount--Contract for personal service--Whether enforceable.\n\n\n\nHEADNOTE:\n    The respondent was appointed on 15.7.1962 as a Chemistry\nlecturer  in  Kulohaskar  Ashram  Agriculture\tIntermediate\nCollege\t run  by the appellant society. By  a  communication\ndated 20.6.1963, he was informed by the management that\t his\nservices were no longer required after 15.7.1963. He filed a\ncivil suit for permanent injunction restraining the  manage-\nment  from  proceeding\twith the proposed  action.  But\t the\nmanagement having withdrawn the letter, he withdrew the suit\nas  having  become infructuous. However\t on  28.8.1964,\t the\nrespondent  was placed under suspension whereupon  he  again\nfiled  a  civil\t suit for a declaration that  the  order  of\nsuspension  was illegal. The trial court dismissed the\tsuit\nbut the first appellate court allowed the appeal and decreed\nthe  suit as prayed for. On appeal the High  Court  affirmed\nthat decision, on 9.4.69. During the pendency of the  appeal\nbefore the High Court, the management-appellant had passed a\nfresh  order  suspending the respondent pending\t enquiry  on\ncertain allegations. The respondent again filed a civil suit\nto  challenge  the competency of the managing  committee  to\ntake  action against him. In the said suit he  also  pleaded\nthat the prior approval of the District Inspector of Schools\nhaving\tnot been taken, the order placing him under  suspen-\nsion  was bad. The Munsiff Court accepted the suit  and\t de-\nclared\tthe suspension order as illegal and void. The  first\nappellate  court  reversed  that order\tand  the  respondent\npreferred second appeal to the High Court.\n    During  the pendency of the respondent's second  appeal,\nU.P.  Secondary Educational Laws (Amendment) Act, 1976\tcame\ninto force from 18.8.76 which inter alia provided that prior\napproval  of the District Inspector of School was  necessary\nbefore any action could be taken against teaching staff of a\ncollege.  The  respondent sought to amend the  pleadings  of\nsecond appeal in consonance with the Act but\n451\nthe  High Court declined but he succeeded on  this  question\nbefore this Court.\n    Contemporaneously with the litigation set out above, the\nrespondent  filed a suit for recovery of arrears of  salary,\npast pendente lite and future. It was claimed for the period\nbetween 21.2.1964 and 20.2.1967. The trial court decreed the\nsuit  for Rs.7812\/92 p. being the arrears of salary for\t the\nperiod\tof three years. The management appealed to the\tDis-\ntrict  Court  and the respondent filed\tcross-objection.  As\nstated earlier, the second appeal preferred by the  respond-\nent  was pending in the High Court. Hence the parties  moved\nthe High Court for withdrawing the appeal pending before the\nDistrict  Court for being disposed of alongwith\t the  second\nappeal\tNo.  2038\/1970, which request was accepted  and\t the\nsaid appeal came to be registered as First Appeal No. 460 of\n1982.  The  High  Court disposed of both the  appeals  by  a\ncommon judgment whereby the second appeal was dismissed\t and\nthe  finding as to the validity of the suspension order\t was\nconfirmed.  However  the First Appeal was  allowed  and\t the\ndecree\tof the trial court was reversed and a suit  for\t ar-\nrears  of salary filed by the respondent was dismissed.\t The\nrespondent appealed to this Court and his appeal was allowed\nand  his claim to salary between 20.2.1964 to 15.1.1966\t was\nsettled\t at Rs. 10,000 and the court further held  that\t the\norder\tof   suspension\t ceased\t to  be\t  operative   w.e.f.\n17.10.1975.\n    Thereafter the respondent on May 18, 1986 moved the High\nCourt  under Article 227<\/a> of the Constitution for a  writ  of\nMandamus against the State of U.P. and the management of the\nCollege for his reinstatement in service and for payment  of\nentire\tarrears of salary. The High Court accepted the\twrit\npetition  and granted him the relief asked for. Hence  these\nappeals\t by  the Management of the school and the  State  of\nU.P.\nAllowing the appeals, this Court,\n    HELD: Indeed, the reinstatement would be an unwise\tmove\nfrom  any  point of view. In educational  institutions,\t the\nCourt  cannot focus only on the individual. The\t Court\tmust\nhave regard to varying circumstances in the academic  atmos-\nphere  and  radically  changed position\t of  the  individual\nsought\tto  be\treinstated. The court must  have  regard  to\ninterests of students as well as the institution. [459E]\n    In\tthe  instant  case, during the\tgap  of\t twenty-five\nyears,\tthe  respondent must have clearly  lost\t touch\twith\nChemistry as well as the\n452\nart  of teaching. It must have been also deeply\t buried\t and\ndisintegrated under the new acquisition of his legal  knowl-\nedge. Reinstatement of such a person seems to be unjustified\nand uncalled for. [459G]\n    Legal profession may not be considered as an  employment\nbut the income from profession or avocation if not  negligi-\nble,  cannot  be ignored while determining damages  or\tback\nwages for payment. [463G]\n    In\ta case like this. the Government cannot\t be  saddled\nwith the liability to make payment. There is no relationship\nof master and servant between Government and respondent\t and\nsuch  relationship existed only between the  management\t and\nrespondent.  So far as statutory liability to pay salary  to\nteacher is concerned, the Government has been paying  salary\nto  Dr. Gopendra Kumar who has since been appointed as\tLec-\nturer in the place of the respondent. Therefore, the manage-\nment alone should pay the amount ordered. [464D-E]\n    Vaish Degree College v. Lakshmi Narain<\/a>, [1976] 2 SCC 68;\nG.R.  Tiwari v. District Board, Agra and Anr<\/a>., [1964] 3\t SCR\n55, 59; The Executive Committee of U.P.\t Warehousing  Corpo-\nration\tLtd. v. Chandra Kiran Tyagi<\/a>, [1970] 2 SCR 250,\t265;\nBank  of Baroda v. Jewan Lal Mehrotra<\/a>, [1970] 3 SCC 677\t and\nSirsi Municipality v. Kom Francis<\/a>, [1973] 3 SCR 348; Smt. J.\nTiwari v. Smt. Jawala Devi Vidya Mandir & Ors<\/a>., [1979] 4 SCC\n150; Deepak Kumar Biswas v. The Director of Public  Instruc<\/a>-\ntions,\t[1979] 4 SCC 160; Andi Mukta Sadguru Shree  Muktajee\nVandas\tSwami Suvaran Jayanti Mahotsav Samarak Trust &\tOrs.\nv.V.R.\tRudani & Ors<\/a>., [1989] 2 SCC 691 at 697;\t TrilokChand\nModichand  & Ors. v. H.B. Munshi & Anr., [1969] 2  SCR\t824;\nMaimoona  Khatun & Anr. v. State of U. P. & Anr<\/a>.,  [1980]  3\nSCR  676; Managing Director U.P. Warehousing  Corporation  &\nAnr.  v. Vinay Narain Vajpayee<\/a>, [1980] 2 SCR  773;  Maharaja\nSayajirao  University of Baroda & Ors. v. R.S.\tThakur<\/a>,\t AIR\n1968  SC 2112 and S.M. Saiyad v. Baroda\t Municipal  Corpora<\/a>-\ntion, [1984] Supp. SCC 378, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  917  of
\n1989 etc.
\n    From  the  Judgment and Order dated\t 15.12.1988  of\t the
\nAllahabad High Court in C.M.W.P. No. 10059 of 1987.
\n    Yogeshwar  Prasad,\tSatish Chandra, Mrs.  S.  Dixit\t and
\nMukul Mudgal for the Appellants.\n<\/p>\n
453<\/span><\/p>\n
A.K. Srivastava for the Respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\n    K.\tJAGANNATHA  SHETTY, J. This is the  third  time\t the
\nmatter is coming before this Court and we hope that this  is
\nthe last of a series of litigations between the parties.
\n    We have been helpfully provided with a chronology of the
\nevents\tleading up to this appeal. It is important that\t the
\nchronology is made clear. It is as follows:\n<\/p>\n
    At\tAllahabad, there is a private college called  “Kulb-
\nhaskar\tAshram Agriculture Intermediate College”. It is\t run
\nby  the “Kayastha Pathshala” which is a\t society  registered
\nunder  the Societies Registration Act<\/a>. Rajendra Prasad,\t the
\ncommon\trespondent in the appeals, was a Chemistry  lecturer
\nin  that  College. He was appointed on 15 July 1962  in\t the
\nscale  of Rs. 175-10-2 15. On 20 June 1963,  the  management
\nwrote to him stating that his services would not be required
\nafter 15 July’ 1963. It was indeed a termination letter. The
\nrespondent moved the Civil Court with suit No. 422\/1963\t for
\npermanent injunction restraining the management from  inter-
\nfering\twith his teaching work. The management resisted\t the
\nsuit inter alia, contending that the respondent was appoint-
\ned  only  for one year. He was removed after the  period  of
\nprobation since his work was found to be unsatisfactory.  It
\nwas  also contended that no injunction could be granted\t for
\nenforcement of the contract of personal service and the suit
\nwas  not maintainable. On 20 May 1964, the Trial Court\tdis-
\nmissed\tthe suit as not maintainable. It was also held\tthat
\nthe  suit  had become infructuous since the  management\t had
\nwithdrawn the impugned communication.\n<\/p>\n
    It\tseems that the management had withdrawn its  earlier
\ncommunication only to make another order. On 28 August 1964,
\nthe  respondent\t was placed under suspension  and  he  again
\napproached  the Civil Court for relief. He  instituted\tsuit
\nNo.  198 of 1964 in the Munsif Court seeking  a\t declaration
\nthat  the order of suspension was illegal. The\ttrial  court
\ndismissed  the\tsuit,  but the appeal  therefrom,  F.A.\t No.
\n583\/1965,  was allowed by the First Additional Civil  Judge,
\nAllahabad  decreeing the suit as prayed for.  That  decision
\nwas affirmed by the High Court in Second Appeal No. 1111  of
\n1966. The High Court rendered the judgment on 9 April 1968.
\nBefore\tthe  disposal of the appeal by the High\t Court,\t the
\nmanage-\n<\/p>\n
454<\/span><\/p>\n
ment  made a fresh order suspending the\t respondent  pending
\nenquiry on certain allegations- That order was issued on  30
\nDecember  1965\/7 January 1966. This order was also the\tsub-
\nject  matter of a suit. The respondent filed Civil Suit\t No.
\n48 of 1966 in the Munsif Court at Allahabad challenging\t the
\ncompetency of the managing committee to take action  against
\nhim.  He also contended that the prior approval of  District
\nInspector  of Schools (DIOS) was not taken for\tplacing\t him
\nunder  suspension-  The Munsif Court accepted the  suit\t and
\ndeclared that the suspension order was illegal and void. But
\nthe  management\t successfully took up the  matter  of  Civil
\nAppeal\tNo. 117 of 1969 before the Additional  Civil  Judge.
\nThe appeal was allowed reversing the trial court decree\t and
\nupholding  the respondent’s suspension. The respondent\tpre-
\nferred\tsecond appeal to the High Court and it was  numbered
\nas S.A. No. 2038 of 1970. We may stop here for a moment\t and
\nrefer to some other events.\n<\/p>\n
     During  the pendency of the said second appeal  in\t the
\nHigh  Court, the U.P. Secondary Education  Laws\t (Amendment)
\nAct, 1976, was brought into force with effect from 18 August
\n1976.  The provisions thereunder required the management  of
\nthe  college to take prior approval of DIDS for\t taking\t any
\naction against teaching staff. The respondent took advantage
\nof those provisions and made an application for amendment of
\nhis  plaint  to incorporate additional paragraphs  13-A\t and
\n14(g).\tIn  the\t additional paragraphs,\t he  challenged\t the
\nvalidity  of the suspension order since management  did\t not
\ntake  prior permission of the DIOS. It was alleged that\t the
\nsuspension  order  became  invalid and\tinoperative  on\t the
\nexpiry of 60 days from the date of service.\n<\/p>\n
     The  State\t of  Uttar Pradesh was not a  party  to\t the
\noriginal  suit. For the first time, on 31 October  1980\t the
\nrespondent  made an application for impleading the State  of
\nU.P.  and  DIOS as supplemental respondents to\tthe  appeal.
\nTheir  impleading  was perhaps necessitated in view  of\t the
\nliability of the State Government to pay salaries to  teach-
\ners  under  the U.P. High School  and  Intermediate  College
\n(Payment  of Salaries of Teachers and Other employees)\tAct,
\n1971.  Section\t10(1)<\/a>  of the Act provides  that  the  State
\nGovernment shall be liable to payment of salaries of  teach-
\ners and employees of every institution due in respect of any
\nperiod after March 31, 1971.\n<\/p>\n
     The  High Court did not consider it necessary to  allow
\nthe  said amendment of the plaint. But the  respondent\tsuc-
\nceeded in this Court. By order dated 20 April 1980 the Court
\nallowed his appeal and
\n455<\/span>
\ndirected  the High Court to allow the amendment. The  second
\nappeal\tNo. 2038 of 1970 thus fell for consideration in\t the
\nlight of fresh points raised in the amplified plaint.
\n    Next, as to proximity, there is one other related  liti-
\ngation\tbetween\t the same parties. It is  now  necessary  to
\nrefer  to  it. The respondent filed a suit for\trecovery  of
\narrears\t of  salary past, pendente lite and future.  It\t was
\nclaimed\t for  the  period between 21 February  1964  and  20
\nFebruary 1967. That suit was filed in 1968 and registered as
\nCivil suit No. 53 of 1968. On 31 July 1969, the trial  court
\ndecreed the suit for Rs.7812.92 being the arrears of  salary
\nfor the period of three years. The management of the college
\nappealed  to the District Court in Civil Appeal No.  268  of
\n1969.  The respondent filed a cross objection to the  extent
\nof  the relief denied to him. The second appeal no. 2038  of
\n1970  was then pending in the High Court. It seems that\t the
\nparties moved the High Court for withdrawal of C.A. No.\t 268
\nof 1969 from the District Court for being disposed of  along
\nwith  the second appeal No. 2038 of 1970. That\trequest\t was
\nallowed and the said appeal was withdrawn. It was renumbered
\nby the High Court as First Appeal No. 450 of 1982.
\n    The\t High  Court disposed of both the  said\t appeals  by
\ncommon judgment dated 22 October 1982. The second appeal No.
\n2038  of  1970 was dismissed confirming the finding  of\t the
\nAdditional Civil Judge as to the validity of the  suspension
\norder. The first appeal No. 450 of 1982 was allowed  revers-
\ning  the  decree of the trial court and dismissing  the\t re-
\nspondent’s  suit for arrears of salary. His claim  for\tpen-
\ndente lite salary also vanished along with that.
\n    The\t respondent stopped into this Court for\t the  second
\ntime. Being aggrieved by the decision of the High Court,  he
\nappealed to this Court in C.A. No. 5891 of 1983. The  appeal
\nwas  allowed by a brief order dated 25 September 1986  which
\nhas  since been reported in AIR 1987 SC 1644. For  immediate
\nreference we may set out the same hereunder:\n<\/p>\n
\t      “The  High Court in the judgment recorded\t the
\n\t      following findings:\n<\/p><\/blockquote>\n
\t      “The  result  is, as noticed above,  that\t al-
\n\t      though it cannot be said that the order  dated
\n\t      30 December 1965\/7 January 1966 suspending the
\n\t      plaintiff\t from service of the defendant\tcol-
\n\t      lege was illegal or null and void\t inoperative
\n\t      against the
\n\t      456<\/span>
\n\t      plaintiff from its inception, it did cease  to
\n\t      be operative with effect from 17 October\t1975
\n\t      on the expiry of 60 days from the commencement
\n\t      of  the U.P. Secondary Education Laws  (Amend-
\n\t      ment) Act, 1975.\n<\/p><\/blockquote>\n
\t\t\tHaving\trecorded this  finding,\t the
\n\t      High Court refused to exercise its  discretion
\n\t      to  grant\t a  declaration that  the  order  of
\n\t      suspension ceased to be operative with  effect
\n\t      from  17 October 1975. We think that the\tHigh
\n\t      Court  was  wrong\t in refusing  to  grant\t the
\n\t      declaration.  We, therefore, declare that\t the
\n\t      order  of\t suspension ceased to  be  operative
\n\t      with  effect from 17 October 1975. The  appeal
\n\t      against  the  judgment of the  High  Court  in
\n\t      second appeal No. 2038 of 1970 is disposed  of
\n\t      accordingly.\n<\/p><\/blockquote>\n
\t\t\tIn  the appeal against the  judgment
\n\t      of  the High Court in First Appeal No. 450  of
\n\t      1982  we do not see how the appellant  can  be
\n\t      denied  his salary for the period\t between  20
\n\t      February 1964 to 15 January 1966, the date  on
\n\t      which  the effective order of  suspension\t was
\n\t      communicated  to him. Instead of\tsending\t the
\n\t      case  back to the trial court for\t determining
\n\t      the  amount,  we\tthink  that  a\tdecree\t may
\n\t      straight\taway  be  passed for a\tsum  of\t Rs.
\n\t      10,000  which  will  include  salary  for\t the
\n\t      period, interest up to date and costs.”<\/p><\/blockquote>\n
    With  due  apologies for this lengthy  introduction,  we
\nthen come to the proceeding out of which the present appeals
\narise.\tOn 18 May 1986 the respondent moved the\t High  Court
\nunder  Article\t226<\/a> of the Constitution seeking\t a  writ  of
\nMandamus  against  the State of U.P. and management  of\t the
\ncollege\t for  his reinstatement in service with\t payment  of
\nentire\tarrears of salary. He rested his case on the  afore-
\nsaid  decision. This High Court accepted the  writ  petition
\nand gave him all the reliefs asked for.\n<\/p>\n
As  to\tthe  validity of suspension order,  the\t High  Court
\nremarked:\n<\/p>\n
\t      “The  order  of suspension being\tillegal\t was
\n\t      correctly set aside by the Supreme Court after
\n\t      the  enforcement of U.P.\tSecondary  Education
\n\t      Laws  (Amendment)\t Act, 1975 as  none  of\t the
\n\t      conditions  mentioned  in sub-section  (5)  of
\n\t      Section  16-G<\/a> of the Act were fulfilled as  no
\n\t      charges  were framed against  the\t petitioner,
\n\t      nor   any\t  charge   sheet   was\t served\t  on
\n\t      him   …………..  The\t petitioner,  there-
\n\t      fore,
\n\t      457<\/span>
\n\t      could not have been suspended and the order of
\n\t      suspension,  in our view, was void ab  initio.
\n\t      Under  law there was no provision to keep\t the
\n\t      petitioner  under suspension for more than  21
\n\t      years  without enquiry being held and  without
\n\t      any  charge sheet being submitted.  The  peti-
\n\t      tioner has a legal right to continue in  serv-
\n\t      ice and we direct him to be reinstated  forth-
\n\t      with.”\n<\/p><\/blockquote>\n
As regards the arrears of salary, the High Court observed:\n<\/p>\n
\t\t    “Once the order of suspension ceased  to
\n\t      be  operative and was ab initio void from\t its
\n\t      very inception, the petitioner shall be deemed
\n\t      to be in continuous service. That\t application
\n\t      of  the petitioner was sent to State  of\tU.P.
\n\t      through  the Education Secretary and also\t the
\n\t      District\tInspector of Schools.  The  District
\n\t      Inspector of Schools has already sent a letter
\n\t      dated  7.1.  1987 (Annx. 28) to  the  Manager,
\n\t      Kulbhaskar  Ashram  Agriculture\tIntermediate
\n\t      College,\tAllahabad about the payment  of\t ar-
\n\t      rears  of\t salary to the petitioner.  But\t the
\n\t      Manager  and the State of U.P. do not seem  to
\n\t      be interested in making payment of arrears  of
\n\t      salary  to the petitioner. We are\t accordingly
\n\t      of  the opinion that the petitioner  has\tmade
\n\t      out a case for issuance of a writ of  mandamus
\n\t      directing\t the State of U.P. and the  District
\n\t      Inspector\t of Schools, Allahabad to make\tpay-
\n\t      ment of arrears of salary to the petitioner in
\n\t      view of Section 10<\/a> and prior to that date\t the
\n\t      arrears  of pay and other emoluments would  be
\n\t      payable by the institution. In case the insti-
\n\t      tution  fails  to make payment  the  procedure
\n\t      under  Section 11 of the Payment\tof  Salaries
\n\t      Act may be adopted.”\n<\/p><\/blockquote>\n
Finally, the High Court issued the following directions:\n<\/p>\n
\t\t     “In view of the premises aforesaid, the
\n\t      present  petition\t succeeds  and\tis   allowed
\n\t      Respondents  Nos. 1 and 2 the State  of  Uttar
\n\t      Pradesh and the District Inspector of Schools,
\n\t      Allahabad\t are  directed to  make\t payment  of
\n\t      salary to the petitioner since 16.1.1966\ttill
\n\t      date,  forthwith\tincluding  D.A.\t and   other
\n\t      emoluments  admissible under law,\t of  course,
\n\t      after  deducting the amount, if any,  paid  to
\n\t      him as subsistence allowance during the period
\n\t      of  his  suspension. We further add  that\t the
\n\t      petitioner  shall be reinstated forthwith\t and
\n\t      shall be paid his salary regularly in  accord-
\n\t      ance
\n\t      458<\/span>
\n\t      with  the provisions of Section 3<\/a> of the\tPay-
\n\t      ment of Salaries Act<\/a>, 1971.”<\/p><\/blockquote>\n
       Challenging  the\t judgment  of the  High\t Court,\t the
\nmanagement  as well as State Government by  obtaining  leave
\nhave now appealed. This how the matter is coming before\t the
\nCourt for the third time.\n<\/p>\n
    The first question for consideration is whether the High
\nCourt  was justified in directing reinstatement of  the\t re-
\nspondent?  There is a long established rule of\tCourts\tthat
\nservice contract cannot be specifically enforced. There are,
\nhowever,  three\t exceptions which have been adverted  to  in
\nvery many cases. In Vaish Degree College v. Lakshmi  Narain<\/a>,
\n[1976]\t2 SCC 68 at 71 after examining a large v. number  of
\nauthorities  like: S.R. Tiwari v. District Board,  Agra\t and
\nAnr<\/a>.,  [1964] 3 SCR 55, 59: The Executive Committee of\tU.P.
\nWarehousing Corpora,on Ltd v. Chandra Kiran Tyagi, [1970]  3
\nSCR 250, 265: Bank of Baroda v. Jewan Lal Mehrotra<\/a>, [1970] 3
\nSCC 677 and Sirsi Municipality v. Kom Francis<\/a>, [1973] 3\t SCR
\n348 the Court rounded off the conclusion:\n<\/p>\n
\t      “On consideration of the authorities mentioned
\n\t      above, it is, therefore, clear that a contract
\n\t      of  personal  service  cannot  ordinarily\t  be
\n\t      specifically  enforced  and a  court  normally
\n\t      would not give a declaration that the contract
\n\t      subsists\tand the employee, even after  having
\n\t      been removed from service can be deemed to  be
\n\t      in service against the will and consent of the
\n\t      employer.\t This rule, however, is\t subject  to
\n\t      three well recognised exceptions: (i) where  a
\n\t      public  servant is sought to be  removed\tfrom
\n\t      service in contravention of the provisions  of
\n\t      Article 311<\/a> of the Constitution of India; (ii)
\n\t      where  a worker is sought to be reinstated  on
\n\t      being dismissed under the Industrial Law;\t and\n<\/p><\/blockquote>\n
\t      (iii) where a statutory body acts in breach or
\n\t      violation\t of the mandatory provisions of\t the
\n\t      Statute.\n<\/p><\/blockquote>\n
    This  decision  has been affirmed in Smt. J.  Tiwari  v.\n<\/p><\/blockquote>\n
Smt. Jawala Devi Vidya Mandir and Ors., [1979] 4 SCC 160 and
\nreiterated in Deepak Kumar Biswas v. The Director of  Public
\nInstructions<\/a>, [1979] 4 SCC 160 and adverted to in Andi Mukta
\nSadguru Shree Muktajee Vandas Swami Suvaran Jayanti Mahotsav
\nSamarak Trust and Ors. v. V.R. Rudani and Ors<\/a>., [1989] 2 SCC
\n691 at 697. These authorities say that a college owned by  a
\nprivate body, though recognised by or affiliated to a Statu-
\ntory University will not become a statutory body
\n459<\/span>
\nsince  not enacted by or under a statute. And the  dismissed
\nemployee of such institution cannot get specific performance
\nof service contract:\n<\/p>\n
    The submission for the respondent, however, was that the
\npresent\t case stands on a different footing since there\t was
\nno repudiation of the respondent’s contract of service.\t The
\ncontract  of service, according to him is  still  subsisting
\nand it was, therefore, not inappropriate for the High  Court
\nto put the respondent back into service. But counsel for the
\nappellants  added that the respondent himself has  abandoned
\nhis  post after he was suspended and there was therefore  no
\nneed  to terminate his service. The declaration made by\t the
\nrespondent  when he enrolled himself as an advocate in\t1968
\nstating that he was not employed nor engaged in any business
\nor profession was relied upon to support the submission.  It
\nis  said  that the law required that the respondent  at\t the
\ntime enrolment must have given particulars of his employment
\nor of his business or trade it he had one. He must have also
\nproduced  a  character\tcertificate from  the  employer\t and
\nproved as to how the employment came to an end. Since he did
\nnot furnish any such particulars counsel urged that it was a
\nclear  case of abandonment of service and no specific  order
\nof termination was necessary.\n<\/p>\n
    Much  could\t be  said on both the  contentions,  but  we
\nrefrain\t from  expressing any opinion since this  is  not  a
\nproper\tcase  for reinstatement. Indeed,  the  reinstatement
\nwould  be an unwise move from any point of view.  In  educa-
\ntional\tinstitutions,  the Court cannot focus  only  on\t the
\nindividual  forgetting all else. The Court must have  regard
\nto  varying  circumstances in the  academic  atmosphere\t and
\nradically  changed position of the individual sought  to  be
\nreinstated.  The  Court\t must have regard  to  interests  of
\nstudents  as well as the institution. It is not\t unimportant
\nto note that the respondent was out of teaching for over  25
\nyears.\tHe  seems to have taught Chemistry for\tone  or\t two
\nyears in 1962 and 1963. Thereafter, he did not teach Chemis-
\ntry  at any time in any College. In 1964-65 he diverted\t his
\nattention  and sought admission in LL.B. Degree\t Course.  In
\n1968,  he  enrolled himself as an advocate  and\t since\tthen
\nconcentrated only in law courts. In this gap of twenty\tfive
\nyears he must have clearly lost touch with Chemistry as well
\nas art of teaching. It must have been also deeply buried and
\ndisintegrated under the new acquisition of his legal  knowl-
\nedge. Reinstatement of such a person seems to be unjustified
\nand uncalled for.\n<\/p>\n
    The\t next  question\t for consideration  is\twhether\t the
\nrespondent  is entitled to damages or salary as\t ordered  by
\nthe  High  Court and if so what should be  the\tmeasure\t for
\ndetermination? Counsel for the appel-\n<\/p>\n
460<\/span><\/p>\n
lants  urged that the respondent’s claim for salary was\t the
\nsubject\t matter of previous litigation which  finally  ended
\nwith a decree by this Court in C.A. No. 5891 of 1983 and  it
\nwas a final settlement of all his claims. It was also argued
\nthat in any event, the respondent is not entitled to damages
\nor salary for more than three years. Our attention was drawn
\nto the decision in Tilok chand Motichand & Ors. v. B. Munshi
\n& Anr<\/a>., [1969] 2 SCR 824.\n<\/p>\n
    In reply and in support of the High Court order, counsel
\nfor the respondent referred to us a number of decisions\t and
\nin particular (i) Malmoona Khatun and Anr. v. State of\tU.P.
\n&  Anr<\/a>.,  [1980] 3 SCR 676; (ii)  Managing  Director,  Uttar
\nPradesh\t Warehousing  Corporation and Anr. v.  Vinay  Narain
\nVajpayee<\/a>,  [1980]  2 SCR 773 and  (iii)\t Maharaja  Sayajirao
\nUniversity  of Baroda and Ors. v. R.S. Thakur<\/a>, AIR  1969  SC
\n2112.\n<\/p>\n
    We have read cases carefully, but it is not necessary to
\nrefer  to them in detail when we have guidance from  binding
\nprecedents in similar cases. There is a triology of cases on
\nthe  question, See: (i) The Vaish Degree College, (ii)\tSmt.
\nJ.  Tiwari  and\t (iii) Deepak Kumar Biswas  to\twhich  brief
\nreference was made earlier. in the first of the three cases,
\nthe institution concerned was a degree college managed by  a
\nregistered co-operative society. The dismissed Principal  of
\nthe  College  filed a suit for\treinstatement,\tinter  alia,
\ncontending  that  the  management of the  college  though  a
\nsociety registered under the cooperative societies Act was a
\nstatutory body since affiliated to the Agra University\t(and
\nsubsequently  to Meerut University). It was  contended\tthat
\nthe  Principal’s termination was in violation  of  statutory
\nobligation of the society, and therefore, his  reinstatement
\nshould be ordered. But that contention was not accepted\t and
\nthe Court said (at 74-75):\n<\/p>\n
\t      “That  the  plaintiff\/respondent\tserved\t the
\n\t      institution  for a short period of  two  years
\n\t      only, i.e. from 1964 to 1966 and thereafter he
\n\t      was bereft of all his powers and did not\twork
\n\t      in the college for a single day.\n<\/p><\/blockquote>\n
\t      (2) That if the declaration sought for or\t the
\n\t      injunction  is  granted to  the  plaintiff\/re-
\n\t      spondent\tthe  result would be that  he  would
\n\t      have to be paid his full salary with  interest
\n\t      and  provident fund for full nine years,\ti.e.
\n\t      from  1966  to 1975, even though\the  had\t not
\n\t      worked  in  the institution for a\t single\t day
\n\t      during this period.\n<\/p><\/blockquote>\n
\t      461<\/span><\/p>\n
\t      (3)  That consequent upon the declaration\t the
\n\t      appellant would have to pay a very huge amount
\n\t      running into a lakh of rupees or perhaps\tmore
\n\t      as  a  result of which the appellant  and\t the
\n\t      institution would perhaps be completely  wiped
\n\t      out  and this would undoubtedly  work  serious
\n\t      injustice\t to  the  appellant  because  it  is
\n\t      likely to destroy its very existence.
\n\t\t    (4)\t It is true that  the  plaintiff\/re-
\n\t      spondent is not at fault,but the stark  reali-
\n\t      ties,  hard facts and extreme hardship of\t the
\n\t      case speak of themselves.\n<\/p><\/blockquote>\n
And said:\n<\/p>\n
\t      “It appears but by virtue of the interlocutory
\n\t      orders passed by this Court, the appellant has
\n\t      already  deposited  Rs.9,000 before  the\tHigh
\n\t      Court  which  was to be withdrawn by  the\t re-
\n\t      spondent after giving security, and a  further
\n\t      sum of Rs.9,100 being the salary of 13  months
\n\t      has  also\t been  deposited  by  the  appellant
\n\t      before  the  trial court under the  orders  of
\n\t      this  Court. It is also stated by Counsel\t for
\n\t      the appellant that the appellant has deposited
\n\t      Rs.3,000\tmore.  We feel that in\tthe  circum-
\n\t      stances  the  respondent may be  permitted  to
\n\t      keep these amounts with him and he will not be
\n\t      required to refund the same to the  appellant.
\n\t      The  amount of deposit in the High  Court,  if
\n\t      not  withdrawn  by the respondent may  now  be
\n\t      withdrawn\t by him without any security and  if
\n\t      he has already withdrawn the amount he will be
\n\t      discharged from the security. This will vindi-
\n\t      cate  the stand of the respondent and  compen-
\n\t      sate  him for any hardship that may have\tbeen
\n\t      caused  to  him by the order  terminating\t his
\n\t      services, and will also put a stamp of finali-
\n\t      ty  to  any  further  litigation\tbetween\t the
\n\t      parties.”<\/p><\/blockquote>\n
    The\t case  of Smt. J. Tiwari seems-to be closer  to\t the
\ncase  before  us.  There the appellant\tclaimed\t arrears  of
\nsalary\tfor  six years covered by the period  of  suspension
\nfrom 1952 till 1958. In January 1952 she filed a suit in the
\ncourt  of Munsif challenging her suspension which was  later
\nwithdrawn  by the High Court of Allahabad for trial  by\t it-
\nself. The High Court decreed the suit holding that the order
\nof suspension was not made by a properly constituted Commit-
\ntee.  On  24 May 1958, her services were terminated  by\t the
\nmanagement of the college with retrospective effect from the
\ndate of suspension. On 28 August 1958, she filed a suit\t for
\na declaration that she continued in the service and
\n462<\/span>
\nfor  setting  aside  the termination order.  She  claimed  a
\ndecree in a sum of Rs.37,657.40 by way of salary. The  trial
\ncourt upheld her contention that the termination of  service
\nwas bad and ineffective. The trial Court, however, passed  a
\ndecree in her favour in the sum of Rs. 15,250 as arrears  of
\npay for a period of 3 years from August 1, 1955 to July\t 31,
\n1958. Both the parties filed appeals before the High  Court.
\nThe  Division  Bench of the High Court\tpartly\tallowed\t the
\nappeal of the management and dismissed the appeal of Smt. J.
\nTiwari.\t The High Court took the view that though  the\tdis-
\nmissal was wrongful, she was entitled to a decree of damages
\nonly and not to a declaration that she still continued to be
\nin the service of the management. The High Court upheld\t the
\nmoney  decree passed by the trial court, but did so  on\t the
\nground that the amount awarded by the trial court by way  of
\narrears of salary could justifiably be granted to her by way
\nof  damages.  This Court while affirming the decree  of\t the
\nHigh Court has, however, said as follows (at p. 162):\n<\/p>\n
\t      “The  High  Court has treated  the  claim\t for
\n\t      three  years’ arrears of salary as being\tpay-
\n\t      able  to the appellant on account of  damages.
\n\t      But that is not a right approach to the  prob-
\n\t      lem. The appellant is entitled to three years’
\n\t      arrears of salary for the period of suspension
\n\t      ,since  the  order of suspension\twas  without
\n\t      jurisdiction  and until May 1958 no  order  of
\n\t      termination  of her service was passed by\t the
\n\t      Society.\tIn addition to the arrears of  three
\n\t      years’ salary, the appellant would be entitled
\n\t      to  three\t months’ salary as provided  for  by
\n\t      clause 10 of the agreement.\n<\/p><\/blockquote>\n
\t      We  would like to add that even if the  appel-
\n\t      lant could be held to be entitled to a  decla-
\n\t      ration that she continued to be in the service
\n\t      of respondent 1, this is not a proper case  in
\n\t      which such a declaration should be granted  to
\n\t      her.  The appellant’s claim according  to\t her
\n\t      counsel  would amount to over Rs.2 lakhs.\t The
\n\t      appellant\t has admitted in her  evidence\tthat
\n\t      she  did not make any attempt to mitigate\t the
\n\t      damages  by  trying to obtain  an\t alternative
\n\t      employment  during  the  last  20\t years.\t The
\n\t      difficulty  of  obtaining\t employment  is\t  an
\n\t      argument which cannot be permitted to a person
\n\t      who, on her own showing, has made no effort to
\n\t      obtain any employment.”<\/p><\/blockquote>\n
    Deepak  Kumar Biswas case appears to be the\t closest  to
\nthe  present  case. There the appellant was  a\tLecturer  in
\nEnglish in Lady Keane
\n463<\/span>
\nGirls  College,\t Shillong. The college was governed  by\t the
\nstatutes of the Meghalaya University and the Education\tCode
\nframed by the State Government. The college was also receiv-
\ning  financial aid from the Government. His appointment\t was
\nterminated  for want of approval by the Director  of  Public
\nInstruction.  The trial court decreed the suit for  declara-
\ntion and permanent injunction. The appellate Court set aside
\nthat  decree and granted monetary compensation of  one\tyear
\nsalary\tas  damages  although his removal was  found  to  be
\nwrongful. This Court sustained the removal but enhanced\t the
\ncompensation  to three years’ salary following\tthe  pattern
\nadopted in the aforesaid two cases.\n<\/p>\n
    What  do  we have here? In 1962 the respondent  was\t ap-
\npointed as a Chemistry lecturer in the scale of Rs.  175-10-\n<\/p>\n
215.  His  performance was found to  be\t unsatisfactory.  In
\nAugust\t1964,  he was placed under  suspension.\t In  January
\n1966,  he was again suspended. Thereafter, he  brought\tsuit
\nafter suit, appeal after appeal from the lowest court to the
\nApex Court. He continued the litigation for about 25  years.
\nOn  17 March 1976 the management had appointed Dr.  Gopendra
\nKumar as Chemistry Lecturer and his appointment was approved
\nby  the\t DIOS. On 28 October 1982 the  management  passed  a
\nresolution  confirming his appointment w.e.f.  27  September
\n1975. That was also approved by the DIOS. Dr. Gopendra Kumar
\nwas not a party to any one of the earlier litigations nor to
\nthe present appeal.\n<\/p>\n
    The respondent knew very well that his service  contract
\nwas  with  the private management. In  1964  itself  learned
\nMunsif while dismissing the first suit No. 422\/1963 has held
\nthat  his contract of employment could not  specifically  be
\nenforced.  He was then obliged to place his services on\t the
\nmarket\tto mitigate the damages. But he did nothing  of\t the
\nkind. In 1968 he joined legal profession and he is still not
\nout of it. He has not disclosed his professional income.  In
\nfairness he ought to have disclosed his income to the  Court
\nsince it is in his personal knowledge. Instead, he seems  to
\nhave  urged  before  the High Court  that  the\tprofessional
\nincome\tis  not relevant for consideration. The\t High  Court
\nwhile  accepting  the  submission went a  step\tfurther\t and
\nobserved:  “that joining the legal fraternity can  never  be
\nsaid to be employment and could not disentitle the  respond-
\nent  to claim his arrears of salary.” Legal  profession\t may
\nnot  be\t considered  as an employment but  the\tincome\tfrom
\nprofession  or\tavocation  if not  negligible,\tcan  not  be
\nignored while determining damages or back wages for payment.
\nIt must also be taken into consideration. In S.M. Saiyad  v.
\nBaroda Municipal Corporation, Baroda<\/a>, [1984] (Supp) SCC\t 378
\nthe  Court gave deduction of even a small income of Rs.\t 150
\nper month
\n464<\/span>
\nearned\tby the worker turned advocate while  awarding  back-
\nwages upon reinstatement.\n<\/p>\n
    But\t we cannot accept the contention for the  appellants
\nthat the sum of Rs. 10,000 decreed in favour of the respond-
\nent in Civil Appeal No. 5891 of 1983 was a final  settlement
\nof  all his claims. There is no indication in the  order  of
\nthis Court to that effect.\n<\/p>\n
    In\tthe light of all these facts and  circumstances\t and
\nthe authorities to which we have called attention, it  seems
\nto us that it would be sufficient if the respondent is given
\nsalary for three years on account of damages.
\n    In\tthe result, the appeals are allowed and in  reversal
\nof  the judgment of the High Court, we direct that  the\t re-
\nspondent  be paid three years salary. The payment  shall  be
\ntreated as a final settlement of all his claims. The payment
\nshall be made by the management and not by Government. In  a
\ncase  like this, the Government cannot be saddled  with\t the
\nliability  to  make  payment. There is\tno  relationship  of
\nmaster\tand  servant between Government and  respondent\t and
\nsuch  relationship existed only between the  management\t and
\nrespondent.  So far as statutory liability to pay salary  to
\nteachers is concerned, the Government has been paying salary
\nto Dr. Gopendra who has since been appointed as Lecturer  in
\nthe  place  of respondent. Therefore, the  Management  alone
\nshould\tpay  the amount ordered. The payment shall  be\tmade
\nwithin four weeks.\n<\/p>\n
In  the\t circumstances of the case, we make no order  as  to
\ncosts.\n<\/p>\n
Y.  Lal\t\t\t\t\t\tAppeals\t al-\nlowed.\n465<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kayastha Pathshala, Allahabad … vs Rajendra Prasad And Anr on 8 December, 1989 Equivalent citations: 1990 AIR 415, 1989 SCR Supl. (2) 450 Author: K Shetty Bench: Shetty, K.J. (J) PETITIONER: KAYASTHA PATHSHALA, ALLAHABAD ANDANR. ETC. ETC. Vs. RESPONDENT: RAJENDRA PRASAD AND ANR. DATE OF JUDGMENT08\/12\/1989 BENCH: SHETTY, K.J. (J) BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-248512","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKayastha Pathshala, Allahabad ... vs Rajendra Prasad And Anr on 8 December, 1989 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kayastha-pathshala-allahabad-vs-rajendra-prasad-and-anr-on-8-december-1989\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kayastha Pathshala, Allahabad ... vs Rajendra Prasad And Anr on 8 December, 1989 - 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