Kamarcharan Sahu and Others vs Ramachandra Behera and Others

S. Acharya, J.—The plain tiffs have preferred this appeal against the decision of the Court below by which the decision of the trial Court in Title Suit No. 10 of 1971 has been reversed.

The Plaintiffs'' suit is for declaration that the constitution of the Managing Committee of the Madhyapur aided M.E. school by Defendants 1 to 9 is illegal; the action taken by them in terminating the Plaintiffs'' services from the said school with effect from the afternoon of 28-5-1971 is illegal and not binding on the Plaintiff and/or on the said school; and on the above declaration to set aside the said order and to issue an order of injunction prohibiting Defendants 1 to 9 from interfering with the management of the school.

The admitted facts of the case are that the Madhyapur M.E. School is an aided educational institution established in the year 1960 by the inhabitants of that and the surrounding villages. Plaintiff No. 1 is working as the Headmaster and Plaintiff No. 2 is working as a teacher of that school. Defendants 4, 5, 10 to 16 were the ordinary members and the Plaintiffs were the ex-officio members of the Managing Committee of the school. In April, 1971 the villagers reconstituted a Managing Committee with Defendants 1 to 9 as its members and the Plaintiffs were also taken in as the ex-officio members. Defendant No. 1 was elected as the President and Defendant No. 2 was elected as the Secretary of the said Managing Committee. Defendant No. 2 issued Ext. 1 dated 22-5-1971 terminating the services of the Plaintiffs. The said letter was received by the Plaintiffs on 28-5-1971. The Plaintiffs filed the suit on 25-6-1971 and obtained ad interim order from the Court for continuing in service. The suit was decreed by the trial Court. The Defendants'' appeal in the Court below having been allowed, this second appeal has been filed by the Plaintiffs. This Court by its order dated 24-10-1975 has, on agreement between the parties, maintained the status quo as on 24-10-1975 in respect of the Plaintiffs'' services in the said school. .

The gist of the Plaintiffs'' case is that Defendants 1 to 9 do not legally constitute the Managing Committee; the order Ext. 1 passed by the secretary and Its subsequent ratification by Defendants 1 to 9 is illegal, without jurisdiction, void and not binding on the Plaintiffs.

Defendants 1 to 3, 7 to 9 and 17 filed a joint written statement. The case put forward by them, inter alia, is that the Plaintiffs were appointed by the old Managing Committee by showing undeserved favour and without considering their merit; on 19-4-1971 the villagers, who founded the school, held a meeting and resolved to constitute a new Managing Committee and accordingly a meeting of the representatives of various wards was held on 28-4-1971, where Defendants 1 to 9 were duly elected as ordinary members of the Managing Committee; that Managing Committee was validly constituted; the old Managing Committee has ceased to exist, Defendants 1 and 2 have been duly elected respectively as the President and Secretary of that Managing Committee; Defendant No. 2, after taking over charge of the records of the school from Defendant No. 11, passed the order Ext. 1, dated 22-5-1971 in the interest of the school, and that order was subsequently ratified by the Managing Committee; that order is valid in all respects; the Plaintiffs'' appointment in the school was purely temporary and it was terminable without notice; the Plaintiffs are not entitled to enforce specific performance of their personal service in the school; and that the suit is not maintainable.

Defendants 4 to 6 and 10 to 16 did not file any written statement and they have been set ex parte in the suit.

The trial Court decreed the suit on the following amongst other grounds:

(i) The constitution of the new Managing Committee with Defendants 1 to 9 was illegal and the said Managing Committee had no legal status or sanction ;

(ii) Defendant No. 2 had no legal status as the Secretary, and he had no power competence to terminate the services of the Plaintiffs;

(iii) The ratification of Ext. 1 as per Ext. R/1 did not cure the invalidity of the order contained therein;

(iv) The Managing Committee was not legally competent to discharge the services of any teacher without the approval of the District Inspector of Schools ;

(v) The order of termination does not stand the test of law, rules of equity and conscience, and fair play;

(vi) The Managing Committee comprising of the Plaintiffs and Defendants 4, 5 and 10 to 16 shall be deemed in the eye of law, as continuing in office; and (vii) The suit is maintainable in the Civil Court and it has jurisdiction to declare the impugned order of termination in Ext. 1 as illegal and ultra vires.

The findings of fact arrived at by the trial Court have been confirmed by the appellate Court, but the decree has been reversed on the finding that though the Managing Committee bad not been constituted in accordance with the provisions of the Orissa Education Act (hereinafter referred to as the ''Act'') and the rules framed thereunder'' and on that ground it is invalid, the Plaintiffs, who were teachers in that private school, have no enforceable rights against the management, and so they have no remedy in or cause of action for this suit, and hence this suit is not maintainable in the Civil Court.

The Appellants have preferred this appeal against the aforesaid decision of the Court below and the Respondents have also preferred a, cross-appeal to assail the finding of the Court below that the Managing Committee was not validly constituted and it had no legal status.

The counsel appearing for both the parties at first made their submission on the question of validity of the Managing Committee consisting of the two Plaintiffs and Defendants 1 to 9.

The school in question is admittedly a private institution which has received recognition of the Government and it gets aid from the Government and is governed by a Managing Committee consisting of the representatives of the public and two members representing the staff. Defendants 4, 5 and 10 to 16 were representatives of the public and the Plaintiffs were the members representing the staff in the Managing Committee which existed before May, 1971. On 10-5-1971 a new Managing Committee was formed consisting of Defendants 1 to 9 as members representing the general public and the two Plaintiffs representing the staff of the school. Defendants 1 and 2 were elected respectively as the President and Secretary of the new Managing Committee. Defendant No. 2 in his capacity as the Secretary of the Managing Committee passed the order Ext. 1 terminating the services of Plaintiffs 1 and 2 in the school and this order was subsequently, rarified by the Managing Committee.

The Court below on reference to certain provisions of the Act and the Orissa Education Code (hereinafter referred to as the ''Code'') has held that the previous Managing Committee consisting of Defendants 4 and 5 and 10 to 16 and the Plaintiffs bad not been superseded by the Director of Public Instructions, Orissa, who alone has the power to supersede the said Managing Committee, and the formation of the new Managing Committee is not in accordance with the provisions of the Act and the rules framed thereunder, and so the resolution of the Managing Committee is of no effect or avail. On a consideration of some of the documents filed in this case the Court below finds that the newly constituted Managing Committee was elected by the villagers, but as the constitution of the Committee was not in accordance with Section 7 and other provisions of the Act and the Code, the said Committee has not been validly constituted.

Admittedly, the school in question is a private educational institution which receives aid from the State Government. u/s 7 of the Act this institution must have a Managing Committee. As required under that section, the Managing Committee has to be constituted in accordance with rules made in that behalf. Admittedly, no rules have been framed to the above effect. Section 27(1) of the Act of course provides that unless rules are made under this section the rules contained in the Code, which were in force immediately prior to the coming into force of this Act, shall, in so far as they are not inconsistent with the provisions of this Act or the Constitution, be deemed to be rules under this Act. Article 285 (1) of the Code, referred to by the Court below, or Articles 286, 304 and 306 of the Code, referred to by the trial Court while recording their above finding on this aspect of the case, do not at all state the mode, procedure or the manner in which a Managing Committee of a school in its entirety has to be constituted. Section 11. which is the only other section of the Act, which has been referred to by the trial Court in this connection, does not prescribe any mode for the constitution of a Managing Committee. It merely deals with supersession and reconstitution of a Managing Committee or governing body. Under the different subsections of the said section circumstances necessitating supersession and reconstruction of the managing body or governing body have been enumerated. No provisions either in the Act or in the Code providing for the constitution of a Managing Committee in its entirety in the circumstances as in this case could be shown to me.

Admittedly, the said school has been founded by the villagers of Madhyapur and of the surrounding villages. The contesting Defendants state in paragraph 7 of their written statement that the adult inhabitants of the six surrounding villages including village Madhyapur are, in law, entitled to exercise their fight to constitute, reconstitute, mould, modify, change or dissolve the Managing Committee for the better management of the institution as and when necessary. Admittedly, Defendants 4,5 and 10 to 16 and the Plaintiffs constituted the Managing Committee of the school which managed the affairs of that school from 1961 till the formation of the new Managing Committee. From the averments in the plaint and the written statement it .is quite clear that the adult inhabitants of village Madhyapur and the surrounding villages, who actually founded the school in question in 1960, elected the previous Managing Committee. Ext. E shows that six members of the old Managing Committee including the President by their resolution dated 19-4-1971 resolved that a new Managing Committee would be elected in place of the old Managing Committee. Accordingly, the Secretary was required to send out intimation to all the villagers of the concerned villages to elect their representatives who would elect the new Managing Committee. In pursuance of the said resolution the Secretary sent notices as per Ext. G/1 to the villagers who founded the school to elect their representatives to constitute the new Managing Committee. In a meeting of the said villagers on 28-4-1971 a resolution (Ext D) was passed in which the President and the Secretary of the previous Managing Committee resigned from their said offices and a new Managing Committee was formed with representatives of each of these villages. Plaintiff No. 1 appears to be a signatory to the aforesaid resolutions. By the resolution ( Ext. M) dated 10-5-1971 the new Managing Committee was fully formed with Defendants 1 to 9 and the Plaintiffs as members and Defendants 1 and 2 were elected respectively as the President and the Secretary of the same. That resolution also was signed by Plaintiff No. 2. Charge was handed over and received on 20-5-1971 as it appears from Ext. N. Plaintiff No. 2 also appears to have signed the said resolution Ext. Q shows that Plaintiff No. 1 requested Plaintiff No. 2 to participate in the election of a member from their ward to the Managing Committee. From the above documents it is quite clear that the Plaintiffs and most of the members of the previous Committee actively associated themselves for the formation of the new Managing Committee. It is also clear that the villagers of all the villages who founded the school elected their representatives to constitute this Managing Committee.

The old members, including the President and the Secretary of the previous Managing Committee, who are all parties to the suit, have not appeared in this suit and have been set ex parte. They have not opposed or objected to the formation, constitution and/or continuance of the new Managing Committee. They do not allege that they did not resign or that a new Managing Committee was not required to be constituted or that the new Managing Committee was not duly elected by the concerned persons. Their silence and passive attitude to this suit suggests that they were and are no longer interested in the affairs of the school and that attitude lends support to the specific assertion of the contesting Defendants that all the former members of the Managing Committee decided to constitute a new Managing Committee, they tendered resignation from their membership of the old Committee and the new members thereafter were duly elected by the founders of the school. The resolution (If six members of the old Managing Committee to constitute a new Managing Committee in its entirety, as seen from Ext. E, the resignation of the President and the Secretary of that Managing Committee, as seen from Ext. D, and the passive attitude of the other members of the old Managing Committee, indicate that the previous Managing Committee lacked interest in the affairs of the school and did not like to bear the responsibility of managing the said institution any longer. Nothing could be shown at the bar on which it can be said that the members of the Managing Committee could not have tendered resignation from the membership of the Managing Committee, and once elected they were to continue in that office for the full term. It will be against fundamental law to comprehend such a provision. The founders of the school elected the new Managing Committee under the aforesaid circumstances and there is still no provision in the Act or the Code to constitute a Managing Committee in its entirety under the aforesaid circumstances. So there is nothing wrong in the constitution of the said Managing Committee.

Mr. Mohapatra submits that as per the decision in Brundaban Chandra Mohanty''s case 1971 (1) C.W.R. 453 the public have no right to elect a Managing Committee for such an educational institution. On a careful perusal of that decision find that there is nothing in the said decision to support the above submission of Mr. Mohapatra. Rather in that decision it has been held that a private educational institution which is founded by the public is in the nature of a trust, and the right of management of the trust rests with the founders, In the case before me it is admitted by the Plaintiffs in paragraph 6 of the plaint that the school in question was established in 1960 by the inhabitants of village Madhyapur and the surrounding villages, and almost all the villagers contributed either in cash or kind towards the establishment, of the said school. It is further admitted that the management of the school was entrusted to a body of persons elected in a public meeting and the said body was known as the Managing Committee of that school and that Committee was managing the affairs of the school. As the villagers of the aforesaid villages founded the school, and are therefore the founders of the trust, they have the right to manage the said school, and accordingly have the right to elect a Managing Committee" for the school so long no rules for the constitution or formation of the Managing Committee are framed u/s 7 of the Act. The above view finds support from Brundaban Chandra Mohanty''s case1. As the members of the Managing Committee have been elected by the founders of the school, the constitution of the Managing Committee cannot be questioned by the Appellants. Moreover, the Plaintiffs themselves also functioned for some time as members of this Managing Committee representing the staff of the school. On the above considerations I hold that the new Managing Committee was duly constituted, and there is nothing illegal about its formation or constitution.

The Courts below, after arriving at the finding that the members of the new Managing Committee were actually elected by the said villagers, misdirected their attention to certain inapplicable and irrelevant provisions of the Act and the Code, and so they arrived at an incorrect finding on this aspect of the matter. For reasons stated above I am satisfied that the said finding, both in law and fact, is incorrect and is accordingly set aside. On the said finding the cross-objection filed by Respondent No. 9 has to be and is allowed.

As the new Managing Committee was duly constituted, the order Ext. 1 passed by the Secretary and admittedly ratified by by the new Managing Committee, is a legal order and has binding effect on the Plaintiffs who were the two employees of the school. Moreover, from the records of the case it is evident that the Appellants had not been confirmed in their service in the school. Again, the Civil Court will not enforce a contract of personal service in the absence of the special circumstances or stipulations to that effect. A declaration to enforce a contract of personal service is not granted by the Civil Court, but there are certain well recognised exceptions to this rule. These exceptions, as laid down in Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi, , are appropriate cases of (I) dismissal of a public servant from service in contravention of Article 311; (ii) reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals; (iii) a statutory body when it has acted in breach of a mandatory obligation imposed by statute. The first two exceptions enumerated above do not obviously apply to the Appellants'' case. There is nothing in this case to show that the Managing Committee in terminating the service of the Plaintiffs has acted in breach of any statutory provision or mandatory obligation imposed by statute.

A statutory right to continue in service has been conferred on a teacher of an aided educational institution only by Section 10-A of the Act which provision came into effect only in 1974 by Act 17 of 1974, The impugned order terminating the services of the Appellants and ratified by the Managing Committee was served on 28-5-1971. So the provisions of Section 10-A of the Act do not apply to this case. At the time when the termination order was served, the Appellants had no statutory right to continue in the school, and they do not show that the Managing Committee acted in breach of any mandatory obligation imposed by any statute. That being so, the prayer for setting aside the order Ext. 1 terminating the services of the Plaintiffs which is the main prayer in this suit, cannot be entertained in the Civil Court. Hence the Plaintiff'' suit is not maintainable in the Civil Court.

As this suit is not maintainable in the Civil Court it is not necessary for me to decide some other questions which were raised in this appeal, as decision on the same will be only of academic interest. On the above considerations the Plaintiffs'' appeal is dismissed.

In the result, this appeal is dismissed and the cross-objection is allowed. In the facts and circumstances of the case, parties to bear their own costs of this appeal and the cross-appeal.

Appeal dismissed.