Prabandh Samiti, Manokaran Kanya Junior High School vs Smt. Santosh Kumari Uppal and Others

Pankaj Mithal, J.—The plaintiff Smt. Santosh Kumari Uppal was a teacher in Manokaran Kanya Junior High School, Shahjahnpur since 1968. She was subsequently promoted and appointed as the Head Mistress/Principal of the same. The Committee of Management of the institution milked disciplinary proceedings against her and she was placed under suspension. It is said that in order to avoid the disciplinary proceedings tee tendered her resignation as principal on 23.3.1983 which was accepted, and as such her services came to an end.

In this tactual background, the plaintiff instituted Original Suit No. 404 of 1984 against the institution concerned its Committee of Management. District Inspector of Schools, Additional District Basic Shiksha Adhikari (Mahila), Shahjahanpur, District Basic Shiksha Adhikari. Shahjahanpur, amongst other higher authorities of the education department and the State of U.P. with the prayer that a decree be issued declaring the orders dated 16.6.1984 of the Committee of Management, 15.11.1983 of Additional Director of Education U.P., Allahabad and 7.5.1984, if any, of the Director of Education, U.P. Allahabad as illegal and to treat her in continues service as principal the aforesaid junior high school. A prayer for a decree of permanent injunction restraining the authorities from making any appointment on the post of principal of the institution was also made.

The suit was instituted on 2.7.1984. It was dismissed in default on 9.4.1985 and was restored on 12.7.1990. During this period when the suit had remained dismissed in default Smt. Sudha Tiwari (the present appellant No 3 in this second appeal) was appointed as the principal.Therefore, she was inpleaded as defendant No. 13 in the suit vide order dated 24.1.1996. The plaint was also got amended on the said date and a further prayer challenging the appointment of Smt. Sudha Tiwari aforesaid and the approval granted to her appointment was also made. Later, on 2.5.2000 a further amendment was made in the plaint and prayer was added to declare the plaintiff''s resignation dated 23.3.1983, the resolution of the Committee of Management of the institution dated 5.5.1984 and the order of the Additional District Basic Shiksha Adhikari, Shahjahanpur dated 6.9.1984 to be illegal and void.

In short, the plaintiff''s case ass put forwarded was to the effect that she had never tendered resignation, her so called resignation dated 23.3.1983 does not bear her signatures, the order accepting her resignation dated 28.3.1983 is illegal, she had continued in service and paid salary even after the said date, the acceptance of her resignation amounts to her discharge from service which could not have been done without the prior approval of the District Basic Shiksha Adhikari as contemplated by Rule 15 of Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and conditions of Service of Teacher) Rules, 1978 (hereinafter referred as an Act).

The suit was contested by the Manager and the Committee of Management of the institution (defendant Nos. 1 and 2) by filing written statement contending that the plaintiff had tendered resignation under her signatures on 23.31983 which was sent by her registered post and was received by the Manager of the Committee of Management of the institution on 24.3.1983 whereupon she was relieved from duties on 28.3.1983 whereupon she was relieved from duties on 28.3.1983. The aforesaid defendants filed additional written statement stating that the resignation of the plaintiff dated 23.3.1983 was placed before the Committee of Mnagement of the institution on 5.5.1984 whereupon a proposal for its acceptance was prepared and was submitted to the Additional District Basic Shiksha Adhikari (Mahila), Shahjahanpur who accorded approval to the same vide letter dated 6.9.1984, whereupon the proposal was treated as accepted and the plaintiff was discharged from service vide order dated 12.9.1984. It was further stated that in pursuance of the sanction granted by the authorities to fill up the vacant post of the principal, the appointment of Smt. Sudha Tiwari was made on 23.7.1987. The defendants No. 3, 5 and 12 to the suit i.e. Additional District Basic Shiksha Adhikari (Mahila), Shahjahanpur, District Basic Shiksha Adhikari, Shahjahnpur and the State of U.P. filed a separate written statement. Another written statement was filed by the defendant No. 4 to the suit by the authorised controller, who in the meantime had been appointed to manage the affairs of the institution, supporting the plaintiff, who stated that no resignation, was tendered by her. Defendant No. 13, Smt. Sudha Tiwari on being impleaded filed her written statement defending her appointment but without making any comment with regard the discharge of the plaintiff. The trial court on the basis of the leadings of the parties framed the following issues:

1- D;k okfnuh us dksbZ R;kxi= ugh fn;k gS o QthZ gS\\

2- D;k okfnuh dh lsok lekfIr okni= ds vfHkopuksa ds vk/kkj ij QthZ ,ao ''kwU; gS\\

3- D;k bl U;k;ky; dks okn luqus dk {ks=kf/kdkj izkIr ugh gS\\

4- D;k okn dk ewY;kadu de fd;k x;k gS ,oa iznRr U;k; ''kqYd vi;kZIr gS\\

5- D;k okn /kkjk &6 fV�C;wuy vf/kfu;e ls ckf/kr gS\\

6- vuqrks"k\\v

7- D;k izfrokfnuh la0&13 Jherh lq/kk frokjh iq=h jkevk/kkj dh euksdj.k dU;k tw0 gk0 Ldwy ''kkgtgkWaiqj esa iz/kkukpk;Z ds in ij fu;qfDr ls lEcfU/kr vkns''k fn0 23-7-87 o 15-3-86 voS/k o ''kwU; gS vkSj o iz/kkukpk;Z in ls gVkus ;ksX; gS\\

8- D;k c;ku rgjhj la''kksf/kr rF; }kjk izfroknh la0& 3] 5 yxk;r 12 focU/ku o miefr ds fl)kUr ls ckf/kr gS \\

Finally, the suit was dismissed by the Court of first instance vide judgment and order dated 29.10.1998. A clear finding was recorded on issues No. 1 and 2 that the plaintiff had tendered her resignation. The resignation bears her signatures and that the acceptance of her resignation does not require any prior approval of the District Basic Shiksha Adhikan, Shahjahanpur. On issue No. 3 it was held that the Court has jurisdiction. Further on issue No. 5 it was held that the suit was not barred by the provisions of Section 6 of the U.P. State services Tribunal Act. The appointment of the Smt. Sudha Triwari, defendant No. 13 was held to be valid while deciding issue No.

Against the aforesaid judgment, order and decree of the Court of first instance, the plaintiff preferred Civil Appeal No. 202 of 1998. The appeal was allowed after setting aside the judgment aid order of the trial 5 Court and the suit of the plaintiff was decreed holding the plaintiffs resignation dated 28.3.1983 to be illegal and appointment of Smt. Sudha Tiwari defendant No. 13 dated 23.7.1987 to be invalid.

The present second appeal was preferred jointly by three defendants to the suit namely the Committee of Management of the institution the institution itself through its Manager defendants No. 1 and 2 and by Smt. Sudha Tiwari, defendant No. 13. In this appeal initially an interim order was passed in favour of the appellant i.e. defendants No. 1, 2 and 13 which was later on vacated. Therefore, the matter was taken to the Supreme Court by defendant No. 13 Smt. Sudha Tiwari. The Apex Court vide judgment and order dated 23rd January 2004 disposed of the SLP by observing that there was no justification for the High Court to vacate the stay order dated 5.7.2002 directing for the maintenance of status quo with the request to the Chief Justice of the High Court to get the second appeal heard and decided expeditionary at least within 4 months. In such circumstances this appeal has come up for hearing before me.

The perusal of the record reveals that the appeal was admitted on 27.9.2002 and at the time of admission following three substantial questions of law were framed:

Whether the suit was not, maintainable in view of the Sections 15 and 16 of U.P. Basic Eduction Act?

Whether the removal of the plaintiff-respondent is not required to be approved by the Basic Shiksha Adhikar as was on the basis of the alleged resignation of the plaintiff-respondent?

Whether the suit is not maintainable as the approval dated 06.09,1984 granted by the Additional Zila Basic Shiksha Adhikari, Shahjahanpur has not been challenged?

The record further reveals that during the pendency of the appeal the Committee of Management of the institution was placed under suspension and a ''Prabandha Shanchalak'' was appointed. Accordingly, the appellants No. 1 and 2 of the appeal namely the Committee of Management of the institution and the institution through the Manger of the Committee of Management, defendants No. l and 2 were ordered to be deleted and were substituted by the ''Prabandha Shanchalak'' Smt Sudha Verma. Deputy District Shiksha Adhikari working in the office of District Basic Shiksha Adhikari, Shahjahanpur vide Court''s order dated 12.9.2007. The ''Prabandha Shanchalak'' so substituted in place of appellants No. 1 and 2 was put to notice and despite sufficient service of notice upon her no one has put in appearance on her behalf.

Sri Shesh Kumar, learned Counsel for the appellant No. 3 stated that earlier he was appearing for the appellants No. 1 and 2 also but on the substitution of the ''Prabandha Shanchalak'' he has ceased to have instructions from either from the appellants No. 1 and 2 or the substituted appellant He is therefore, only pressing the appeal on behalf of appellant No. 3. In view of the above, the contest in this appeal is now only between Smt. Sudha Tiwari, appellant No. 3 and Smt. Santosh Kumari Uppal, plaintiff/respondent No. 1.

Sri Shesh Kumar, learned Counsel for the appellant while making his submissions categorically submitted that he does not want to press any of the substantial questions which were framed by the Court while admitting the appeal. However, according to him some additional and different substantial questions of law are involved in the appeal. On the initial submissions made by the learned Counsel for the parties, I was of the opinion that the following two substantial questions of law actually arises in this appeal for determination:

Whether the suit of the plaintiff is expressly barred by Section 14 of the Specific Relief Act and is beyond the jurisdiction of the civil Court?

Whether the services of plaintiff can be brought to an end on the basis of the resignation dated 23.3.1983 without following the procedure of discharge, removal or dismissal as contemplated by Rule 15 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as the Rules)?

Learned Counsel for both the parties were orally put to notice on the aforesaid substantial questions of law on the very first date of hearing i.e. 11.8.2O08. On the adjourned date of hearing, they consented for the final hewing of the appeal on the new substantial questions of law in view of hearing of the Supreme Court for the early disposal of the appeal. Therefore proceeded to hear the appeal on merits with their consent.

I have heard Sri Shesh Kumar, learned Counsel for the appellant No. 3/defendant No. 13, Smt. Sudha Tiwari and Sri Subodh Kumar for the plaintiff-respondent No. 1 Smt. Santosh Kumari Utpal. Standing Counsel has appeared for the other respondents i.e. the educational authorities but no one has appeared for the substituted appellant i.e. the ''Prabandha Shanchalak'' of the institution.

To consider the first question, it would be appropriate to examine the prayers made in the plaint. The amended plaint contains the followings prayers:

okfnuh izkFkZuk djrh gS%&

�v� ;g fd ?kks"k.kkRed fMdzh bl vk''k; ls ikfjr dh tkos fd izfroknh ua0 1 dk i= iz0v0 @ nks&36 �dU;k� @84&85 fnukad 16-6-84 o izfroknh ua0 9 vfr0 f''k{kk funs''kd m0iz0 bykgkckn dk vkns''k fn0 15&11&83 dk Ik`0la0 lkekU; �1� @ r`rh; @ 300&4 @ 84&85 fn0 7&5&84 esa okfnuh euksdj.k dU;k tw0gk0 Ldwy ''kkgtgkWaiqj dh iz/kku v/;kfidk yxkrkj lsok es ekuh tkos vkSj og leLr osru ,oa vU; HkRrs ikus dh vf/kdkfj.kh gSA

�v&1� ;g fd izfroknh ua0 13 Jherh lq/kk frokjh iq=h jkek/kkj fd fu;qfDr euksdj.k dU;k tw0gk0 Ldwy ''kkgtgkaiqj esa iz/kkukpk;Z ds in ij tks vkns''k fnukad 23-7-87 tks izfroknh ua0 3 ftyk csfld f''k{kk vf/kdkjh ds vuqeksnu }kjk izfroknh ua0 7 ds vkns''k fn0 1503086 ds vk/kkj ij fd;k x;k gS ;g lHkh vkns''k o ''kwU; ?kksf"kr djrs gq, okfnuh dks iz/kkukpk;Z ds in ij yxkrkj lsok esa ekuk tkos rFkk izfroknh ua0 13 Jherh lq/kk frokjh ;k dksbZ vU; tks iz/kkukpk;Z ds in ij gks mls Hkh gVk;k tkos A

�v&2� ;g fd dfFkr R;kx i= fn0 23-3-83 o izfroknh ua- 1 o 2 ds }kjk okfnuh dh lsok lekfIr dk vkns''k fn0 28-3-83 o izfroknh ua0 1 dk izLrko fn0 05-5-84 o ftyk csfld f''k{kk vf/kdkjh efgyk ''kkgtgkWaiqj i=kad 2038&39@84&85 fnukad 6-9-84 ls okfnuh dh lsok lekfIr ds vkns''k voS/k] ''kwU; o fcuk vf/kdkj ds gS ?kksf"kr dh tk;s A

�c� ;g fd LFkkbZ fu"ks/kkKk f[kykQ izfroknh x.k bl vk''k; ls ikfjr dh tkos fd os euksdj.k dU;k tw0gk0 Ldwy ''kkgtgkaWiqj esa okfnuh ds iz/kku v/;kfidk ds in ij yxkrkj dk;Zjr ekurs gq, fcuk fdlh vU; dh fu;qfDr ;k inksUufr okfnuh ds in ij u djsa A vkSj u dksbZ ,slk vuqeksnu ns A vkSj okfnuh dks dk;Zjr ekurs gq, mls nkSjku okn o vk;sUnk esa osru Hkqxrku djrs jgs A

�l� ;g fd vU; dksbZ izkFkZuk dks okfnuh ds fgr esa izfroknhx.k ls fnykbZ tkos A

�n� ;g fd okfnuh dks izfroknhx.k ls okn O;; fnyk;k tkosA

Learned Counsel for the plaintiff respondent No. 1 submits that in the present the plaintiff is only concerned with the amended prayer v-2 which is for declaring her resignation and its acceptance as illegal and void and the other prayers made in the plaint are of no relevance and as such be treated as given up. On the other hand learned Counsel for the appellant No. 3 submits that even if the other prayers which were essentially for the continue of service are given up, the effect of the subsisting relief would also be enforcement of a contract of employment which is not permissible in view the Section 14 of the Specific Relief Act and therefore, the suit is barred and not maintainable.

The answer to the above question depends upon the provisions of Section 9 C.P.C., and Sections 14 and 34 of the Specific Relief Act, 1963. For the sake of convenience, the aforesaid provisions are reproduced herein below:

C.P.C.

Section 9. Courts to try all civil suits unless barred- The Court shall (Subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

[Explanation I]-. A suit in which tin right to property or to an office is contested is a sun of a civil nature, notwithstanding that such fight may depend entirely on the decision of questions as to religious rites or ceremonies.

[Explanation II- For the purposes of this section, it is immaterial whether or not any fees cue attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]

Specific Relief Act, 1963.

Section 14. Contracts not specifically enforceable.- (1) The following contracts cannot be specifically enforced, namely:

(a) a contract for the non-performance of which compensation in money is an adequate relief;

(b) a contract which runes inn such minute or numerous details or which is so dependent on the personal qualifications or volition on the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms;

(c) a contract which is in its, nature determinable;

(d) a contract the performance of which involves the performance of a continuous duty which the Court cannot supervise.

(2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or future differences to arbitration shall, be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.

(3) Notwithstanding anything contained in Clause (9a) or Clause (c) or Clause (d) of Sub-section (1), the Court may enforce specific performance in the following cases:

(a) where the suit is for the enforcement of a contract-

(i) to execute a mortgage or punish any other security for securing the repayment of any loan which the borrower is not willing to repay, at once:

Provided that where only a part of the loan has been advanced the lender is willing to advance die remaining part of the loan in terms of the contract; or

(ii) to take up and pay for am debentures of a company;

(b) where the suit is for.-

(i) the execution of a formal died of partnership, the parties having commenced to carry on the business of the partnership; or

(ii) the purchase of a share of a partner in a firm;

(c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other on land:

Provided that the following conditions are fulfilled, namely:

(i) the building or other work is described in the contract in terms sufficiently precise to enable the Court to determine the exact nature of the building or work;

(ii) the plaintiff has a substantial interest in the performance of the contract and the inn rest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and

(iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.

Section 34. Discretion of Court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any pro petty, may institute a suit against may person denying, or; interested to deny, his title to such character or right, and the Court may in its discretion make herein 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" title adverse to the title of some one who is not insistence, and for whom, if in existence, he a trustee.

According to Section 9 C.P.C., all suits which are not barred either expressly or even impliedly by any provision of law are cognizable by civil Court, Therefore, the only thing which is to be examined is as to whether the jurisdiction of the civil court to take cognizable of the present suit stand excluded by Section 14 of the Specific Relief Act, 1963.

The exclusion of the jurisdiction of the mil Court-vested in it u/s 9 of the C.P.C. came up for consideration before the supreme Court by the 5 judges bench in the case of Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, The supreme Court in the aforesaid decision laid down the following principles regarding exclusion of jurisdiction of the civil Court.

(1) Where, the statues gives a finality to the orders of the special tribunals the civil courts'' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provisions, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply: Case law discussed.

The aforesaid decision while laying down principles for exclusion of jurisdiction of the civil Court held that exclusion of jurisdiction of civil Court is not readily to be inferred and the jurisdiction of the civil Court shall not stand excluded where the provisions of the particular Act have not been complied with or where the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

The subsequent three judges bench of the Supreme Court in the case of Executive Committee of Vaish Degree College, Shamli and Ors. v. Lakshmi Narain and Ors. AIR 1976 SC 888 considering a similar controversy with regard to enforceability of the contract of personal services laid down that a contract of personal service cannot ''ordinarily'' be enforced and a Court normally would not give a declaration that the contract subsist and the employee even after having been removed from service can, be deemed to be in service/against the will and consent of the employee. However, three exceptions to the above Role were also specified i.e. (1) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (2) where a worker is sought to be reinstated on being dismissed under Industrial Law; and (3) where a statutory body acts in breach or violation of the mandatory provisions of the statute. Thus, this decision reiterates the rule that the contrail of service is not ''ordinarily'' enforceable but carves out three broad exceptions to the rule and one such except on which was also there in Dhula Bhai (Supra) being where the Statutory body passes an order interfering with such contract of service in breach or violation of the mandatory provisions of the statues. This has further been explained in the same very judgment by one on the judges writing his separate judgment by saying that the doctrine that a contract of personal service cannot specifically be enforce would not stand in the way of the employee in a case whose relationship between the employer and employee is governed by statute and where the termination is null and void. In such a case there would be no repudiation of the contract at all in the eye of law and as such there would be no question for enforcing such a contract of the employment. In the said circumstances the employee would only be claiming declaration of statutory invalidity of an act done by the employer and not enforcement of the contract of personal service. A further example of termination outside the statutory powers was cited and it was said that where the statutory body has no power to terminate an employment or where the termination is in effect in breach of mandatory obligation imposed by law, in such cases, the termination would be a nullity and the employee would be entitled to ignore it and to seek a declaration to this effect which may in the ultimate result in treating him to be still in service. The aforesaid decisions has been followed by the Supreme Court in Nandganj Sihori Sugar Co. Ltd., Rae Bareli and another Vs. Badri Nath Dixit and others, It was reiterated that essentially a contract of employment cannot be enforced by or against the employer and the remedy is to sue for damages, subject to the exceptions culled out by the Court case of Executive Committee of Vaish Degree College, Shamli (supra). Therefore, the legal position that emerges out from the above case1 laws is that the purpose behind Section 14 of the Act is that the employer could not be forced to recruit or retain in service an employee against his wishes or who is not required by him. Accordingly, such suits for enforcement of contract of employment are ''ordinarily'' barred subject to the three exceptions specified.

Now from the pleadings and the prayer which is subsisting it is clear that the plaintiff is seeking declaration with regard to her resignation and to the approval granted to it by a statutory body i.e. Additional Basic Shiksha Adhikari (Women) and its acceptance by the employer on the ground such resignation was ever tendered by her and further that in the absence of the approval by the statutory body it cannot be accepted. The aforesaid submission of her based upon Rule 15 of the Rules, which has been held to be mandatory. Thus in effect she is complaining of the violation of the mandatory provision of law by a statutory body and a such her case squarely falls within the ambit of the third recognized exception to the doctrine that a contract of a personal service cannot be specifically enforced. Apart from the above one cannot loose sight of Section 34 of the Specific Relief Act which authorizes an aggrieved person to seek declaration with regard to his legal character or to any right as to any property by filing a suit before the civil Court. The power of the civil Court to issue declaratory decrees in exercise of power u/s 34 Specific Relief Act is not exhaustive and the civil Court has power to grant further declaratory decrees independently of the requirements provided u/s 34 of the Specific Relief Act. The Apex Court while considering the provision of Section 14 along with the Section 34 of the Specific Relief Act in the case of Ashok Kumar Srivastava v. National Insurance Co. Ltd. and Ors. 1998 (4) AWC 886 (SC) after due consideration of all the above authorities on the point held that Section 34 of the Specific Relief Act is wide enough to open the corridors of the civil Court to admit suits filed for verity of the decrees of declaratory nature and the language of Section 34 of the Specific Relief Act does not exhaust the powers of the Court to giant declaratory reliefs not contemplated therein. Even the latest decision on the point i.e. Pearlite Liners Pvt. Ltd. Vs. Manorama Sirsi, and Swamy Atmananda and Others Vs. Sri Ramakrishna Tapovanam and Others, followed the ratio of the earlier decision of the Supreme Court in the case of Executive Committee of Vaish Degree college, Shamli (Supra) and noting contrary has been laid down.

In view of the aforesaid discussions, I am of the opinion that in the instant case the jurisdiction of the civil Court does stand excluded by Section 14 of the Specific Relief Act for the reason that the plaintiff is complaining violation of the mandatory provision of the statute by a statutory body and secondly is seeking a declaration which is not prohibited and not any further relief for the enforcement of the contract of employment. The question therefore, stand answered in favour of the plaintiff/respondent No. 1.

For deciding the second question it is submitted that the aforesaid Rules under Rule 15 provides for the procedure for termination of the service of Head Master or Assistant Teacher. It stipulates that no Head Master or Assistant Teacher of a recognised school may be discharged or removed or dismissed from service except with the prior approval in writing of the District Basic Education Officer includes the Additional District Basic Education Officer (Women). Both the aforesaid Rules are quoted below:

2.(d) "District Basic Education Officer" means the District Basic Education Officer appointed by the State Government and includes the Additional Basic Education Officer (Women);

Termination of services.- No Headmaster or assistant teacher of a recognised school may be discharged or removed or dismissed from service or reduced in rank or subjects to, any Institution in emoluments or served with notice of lamination of services except with the prior approval in writing of the District Basic Eduction Officer;

Provided that in the case of the Headmaster or an Assistant Teacher of a minority institution the approval of the District Basic Eduction Officer shall not be necessary.

The plain reading of the aforesaid Rules amply demonstrates that no Head Master or Assistant Teacher of a recognised school shall be discharged without the prior approval in writing of the District Basic Education Officer/Additional District Basic Education Officer (Women).

Now in the present case the question is, whether the acceptance of resignation would amount to "discharge" which requires prior approval. The submission of the learned Counsel for the appellant No. 3 is that resignation is defferent from discharge and, therefore requires no prior approval, whereas no behalf of the plaintiff respondent No. 1 Smt. Santosh Kumari Uppal, the submission is that resignation falls within the ambit of "discharge" and as such approval is mandatory.

One of the dictionary meanings of the word "discharge" relieve a person from the charge of the office he is holding. The word "discharge" is wide enough to include within its fold discharge on removal or dismissal from service.

In context with the service jurisprudence the word "discharge" used in Section 138 of the Railways Act, 1890 come up for consideration berore the Apex Court in the case of Sri S.K. Sarma Vs. Mahesh Kumar Verma, . The supreme Court while interpreting the said word held that it is cessation of relationship of employer and employee which may be either on accourt of ''retirement'', resignation, dismissal or removal. Therefore, applying the same analogy to the word discharge used in Rule 15 of the Rules, it would include within its ambit cessation of relationship by resignation also. In 2003(1) ESC 560 Yashwant Singh v. District Basic Shiksha Adhikari, Jhansi and Ors. it has been held that any order of the discharge passed in violation of Rule 15 is illegal and is liable to be set aside. Therefore, to y mind prior approval of the authority concerned is necessary even where the discharge of the Head Mistress/Assistant Teacher is on the basis of a resignation. Accordingly, the 2nd question is also decided in favour of the plaintiff/respondent No. 1.

Now, the question arises as to what relief the plaintiff/respondent No. 1 is entitle to in this appeal/suit. On record, the plaintiff had resigned on 23.3.1983. The said resignation is said to be fake. The Court of first instance on the basis of evidence on record and after comparing the signatures of the plaintiff, on the aforesaid resignation with her admitted signatures, has returned a finding of fact that the resignation bears the signatures of the plaintiff. The said finding of fact has not been reversed by the trial Court and as such has become final and conclusive. Moreover, it happens to be a pure finding of fact and as such cannot be disturbed in second appeal. Thus, treating the resignation dated 23.3.1983 to be genuine, it is to be seen as to whether on its basis a valid discharge has been given to the plaintiff.

It is said that on the basis of the said resignation the plaintiff was relieved from duties on 24.2.1983, the resignation is said to have been accepted by the Manager. The manager is not the authority competent to accept the resignation. The resignation was admittedly sent by registered post and the stamp of the postal department indicates that it was delivered on 26.3.1983 and as such there cannot be any acceptance of the same by the manager on 24.3.1983. The time as to when the said resignation was received by the manager i.e. either on 24.3.1983 or after 26.3.1983 is not material for simple reason that the manager was not competent to accept the resignation.

The resignation come up for consideration before the Committee of Management of 5.5.1984, whereupon a proposal for discharging the plaintiff from service was prepared and was submitted for approval to the Additional Basic Education Officer (Women). The approval was granted on 6.9.1984, whereupon the order of discharge was passed on 12.9.1984. These orders are not disputed. No legal lacuna in the grant of approval dated 6.9.1984 has been pleaded and established. Therefore, the plaintiff was discharged from service after obtaining prior approval of the authority competent in accordance with the Rule 15 of the Rules. The plaintiff accepts that she was not actually discharged from service on 24.3.1983 and she had continued to sign no attendance register and was paid salary even after the aforesaid date. There fore, the actual discharge of the plaintiff took place only w.e.f. 12.9.1984 which was after taking prior approval or the competent authority.

The submission on behalf of the plaintiff that certain authorities of the basic education department and particularly the authorized controller has supported the plaintiff''s case by stating that no resignation was submitted by her. Such a statement is of no significance, as from the evidence on record the resignation has been found to be genuine and implemented in accordance with law. Therefore, any order or stand contrary to it which is of the administrative nature taken by any authority other than the competent autority i.e. Additional District Basic Education Officer (Women) cannot be of any relevance and acceptance. The said authority is not denying the grant of approval.

In view of the above, I find that though the suit of the plaintiff for declaring her resignation as illegal and void for having passed in violation of the statutory provisions, was maintainable but, she is not entitle to any decree in respect thereof as no violation of any statutory rule has been established and on the contrary it is found that she had actually tendered her resignation which was accepted and implemented after taking prior approval of the Additional District Basic Education Officer (Woman).

In view of the aforesaid facts and circumstances, the appeal succeed and is allowed. The judgment, order and decree of the lower appellate Court dated 29.5.2002 passed by the 5th Additional District Judge, Shahjahanpur in Civil Appeal No. 202 of 1998 passed in Original Suit No. 404 of 1984 (Smt. Santosh Kumari Uppal v. Prabandha Samiti) is restored in so far as it dismisses the suit of the plaintiff/respondent No. 1 for the resons indicated in the judgment.

Cost upon the parties.