Gadadhar Barman vs Ranendra Mohan Paul

J.N. Sarma, J.—This revision is another example how by issuing injunction by way of charity injustice is caused.

The opp. party herein was initially appointed as a Teacher in a Primary School against a suspension vacancy of one Bonomali Sen. That person was re-instated in service and on his reinstatement the service of the opp. party was terminated but to give benefit to her, in the mean time against the vacancy another teacher who retired, she was allowed to continue in that post till the post is filled up on regular basis or until further order. Thereafter on 9.1.89 the service of the opp. party was terminated by the Deputy Inspector of Schools by cancelling the earlier order of appointment dated 28.6.88. From the Written Statement filed later on it appears that the order dated 28.6.88 was obtained by the opp. party by threatening the Deputy Inspector of Schools along with some other miscreants. The Written Statement shows that the service of the Petitioner was terminated even before filing of the suit. The suit was filed with the following prayers:

(i) Declaring that the order dated 9.1.89 issued by the Defendant No. 3 is ultra-vires and inoperative.

(ii) Declaring that the Plaintiff is still in service as a Teacher in No. 41, Cirigpart T.E. Lower Primary School.

(iii) Restraining the Defendants from appointing any other persons against the post which is held by the Plaintiff.

On the basis of these prayers temporary injunction order was passed by the Trial Court. But in the plaint itself there is no prayer either for a temporary or permanent injunction. Along with the plaint an application for injunction was filed and the learned Munsiff on 20.1.89 directed the Defendants-opp. parties to maintain status quo as on that day. What was the meaning of the order, that is not known, because a prayer for temporary injunction may be made only in aid of permanent injunction. In terms of the prayer of permanent injunction only temporary injunction order can be passed. The Trial Court granted the relief which was not sought for by the Plaintiff. Thereafter this order of temporary injunction was made absolute on 3.4.93. It is alleged that the Deputy Inspector of Schools did not comply with this order. An application was filed under Order 39 Rule 2(A) of the CPC alleging violation of the order of injunction. The learned Munsiff by order dated 3.4.93 made the order of temporary injunction absolute in Misc. Case No. 7/89 and found the Deputy Inspector of Schools to be guilty for violation of the order of maintenance of status quo as on 28.1.89. It is needless to say that to find a person guilty for violating the order of injunction and/or maintenance of status quo the Court must approach the matter in a cautious and prudent manner. A person cannot be found guilty for violation of the order of injunction until the Court passes a specific order so that the litigant understands the order of injunction. A bald order for maintenance of status quo without stating anything cannot be enforced and rightly the Deputy Inspector of Schools could not follow the same. It was absolutely illegal and without jurisdiction on the part of the learned Munsiff to find the Deputy Inspector of Schools to be guilty for violating the order of injunction. Accordingly the order dated 3.4.93 in Misc. Case No. 7/89 shall stand quashed.

Next coming to the question regarding order dated 3.4.93 in Misc. Case No. 1/89, that was an order of maintenance of status quo making the earlier order of injunction absolute.

It may be stated herein that no such prayer was made in the plaint by the Plaintiff. Only three prayers were made in the plaint. But without prayer of an injunction an order of maintenance of status quo was granted. It is well settled that without making prayer of permanent injunction no temporary injunction can be granted. When a permanent injunction was not sought for the question of granting temporary injunction does not arise. That aspect of the matter was not taken into consideration by the learned Munsiff and setting aside the order of cancellation passed by the Deputy Inspector of Schools is illegal.

As indicated above the Petitioner was only appointed as Assistant Teacher by stating "until further order" and so he did not acquire any right to the post, because it is well known that in order to acquire right, a person must be appointed regularly. If a person is appointed dehors the Rules by such appointment the person cannot acquire any right. He cannot come to the Court for enforcement of such right One may look at 1995 (1) GLJ 563 (Nagendra Chandra Choudhury, Petitioner v. State of Assam and Ors.) wherein a Division Bench of this Court pointed out that appointment of teacher in the Primary School must be made in accordance with rules, that is, adhering to Rule 3 of Rules of 1977. The Petitioner herein was never appointed in accordance with Rules. In Director, Institute of Management Development, U.P. Vs. Smt. Pushpa Srivastava, the Supreme Court pointed out as follows:

Where the appointment is purely on adhoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding such post can have no right to continue in the post. This is so even if the person is continued from time to time on "adhoc" basis for more than a year. He cannot claim regularisation in service on the basis of that he was appointed on adhoc basis for more than a year (the management was directed to consider sympathetically if regularisation in service is possible).

Save and except this the person can claim to receive the salary for the period for which he rendered service. In this particular case as was indicated above, the appointment of the opposite party was not in terms of the Rules and accordingly he cannot claim that his termination was illegal as he was appointed stating "until further order".

Next case is Ashwani Kumar and Others Vs. State of Bihar and Others, wherein the Supreme Court pointed out that the recruitment of the person if not according to Rule and not by adhering to the Rules, there will be no occasion for the Court to come to their help or for enforcement of any right on behalf of such a person.

The Supreme Court further pointed out that in such a case humanitarian ground cannot be countenanced. This appointment of a person being by back door he must go by the same door.

The next case is Dr. Kishore Vs. State of Maharashtra and Others, where the Supreme Court pointed out that a person appointed dehors the Rules cannot acquire any right to the post and his service may be terminated at any time, that is, what has been specifically done in this case. Civil Court cannot have jurisdiction to grant an injunction for continuance of the service of the person and allow a person to enjoy the benefit of wrongful state of thing, if it is allowed, the Civil Court instead of being Court of equity will be Court of oppression. Accordingly the injunction order dated 3.4.93 passed in Misc. Case No. 1/89 arising out of Title Suit No. 14/89 in the Court of Sadar Munsiff No. 3, Silchar shall stand quashed. I am exercising this power to quash the order of injunction Under Article 227 of the Constitution of India as the order is in flagrant violation of law and has caused injustice. Accordingly, this Civil Revision is allowed.

I have heard Shri H.N. Sarma, learned Additional Senior Government Advocate and Shri C.R. Dey, Senior Advocate.