SURAJ BHAN GUPTA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This appeal is by the plaintiff who succeeded in the trial Court but lost before the lower appellate Court. His suit for a declaration that the termination of his services was illegal and unenforceable and for recovery of some amount by way of arrears of salary was decreed by the trial Court but was dismissed in appeal. The case of the plaintiff was that on August 1, 1966, he was appointed as an Assistant Clerk in an educational institution for girls known as Chameli Devi Khandelwal Girls Intermediate College, Mathura. This appointment was in a clear permanent vacancy on probation. He joined duties on August 4, 1966. He worked to the entire satisfaction of the authorities in the institution n who did not extend his period of probation so that he acquired the status of a permanent employee of the institution with effect from August 4, 1967. On September 7, 1967, however, the first defendant (Chameli Devi Khandelwal Girls Intermediate College) required the plaintiff to hand over charge of his post without any notice or order of termination and without obtaining previous approval of the Regional Inspectors of Girls School, Agra. The plaintiff com plained about the illegal action of the institution to the departmental authori ties and it was eventually on April 23, 1973 that his case was finally disposed of by those authorities so that he was compelled to file the suit, out of which this appeal arises, on October 9, 1973. The suit was contested and the pleas that the defendants took primarily were to the effect that the plaintiff had not been appointed in a permanent vacancy but had been appointed in a temporary vacancy on condition that his services were liable to be terminated at any time. He was never confirmed in service. The suit having been filed after several years of the impugned action was barred by limitation. The plaintiff was not entitled to the declaration sought and if at all could seek damages for the wrongful termination of his services. The termination of the plaintiff's services was, according to the defendants, valid. The Additional Civil Judge, Mathura who tried the suit framed a number of issues arising out of the pleadings of the parties. In substance, the view taken by the learned Judge was that the suit had been filed within limitation and that the plaintiff had been appointed in a permanent vacancy and had acquired the status of a confirmed employee on the expiry of the period of probation. His services had been illegally terminated without obtaining the prior approval of the Inspectors of Schools and the termination was, conse quently, illegal. The plaintiff was held entitled both to a declaration that he continued to be in the service of the institution and to a decree for arrears of salary for the period between August 1, 1967 and October 9, 1973. The suit was decreed for these reliefs. The institution assailed the decree in an appeal which was heard by the First Additional District Judge, Mathura. The learned Judge reversed the decree and dismissed the suit on the findings that it had been filed beyond the period of limitation; that the plaintiff had failed to establish that he was appointed in a permanent vacancy and had acquired the status of a confirmed employee on the expiry of the period of probation and further that even on the assumption that he was a confirmed employee in the institution, the plaintiff was not entitled to seek a declaration that he continued to be in the service of the institutions even though the defendants had not given any notice to him before terminating his services. In any case, according to the learned Judge, a suit for declaration was not maintainable. The plaintiff has now approached this Court in the present appeal. During the hearing of the appeal, an application dated February 24, 1981 was made by the plaintiff appellant after serving a copy thereof upon the counsel for the contesting defendant-respondent, praying that two questions formulated by the appellant may be permitted to be raised during the hearing of the appeal. The questions formulated were that the committee of manage ment of the institution was statutory authority/public authority within the meaning of Article 12 of the Constitution and that the management of the institution being vested in the Committee of Management which was constitu ted under Section 16-A of the U. P. Intermediate Education Act, 1921 the Committee functioned as an instrumentality of the State for providing educa tion which was a governmental function. An objection was taken to the prayer contained in this application on behalf of the contesting defendant which was, however, negatived by a detailed order dated March 2, 1981. Learned counsel for the appellant has urged that the view of the lower appellate Court in respect of each of its conclusions is erroneous. It has been argued that the suit was within limitation; that the plaintiff could maintain a suit for declaration and for recovery of arrears of salary; that the plaintiff had acquired the status of a permanent employee whose services had been terminated in contravention of statutory provisions and that in a case like the present the plaintiff could not be refused relief on the ground that he could only sue for damages for wrongful termination of his services. These submis sions have been countered on behalf of the institution and it has been contend ed by its learned counsel that the view taken by the lower appellate Court was in consonance with law. It has also been argued that the plaintiff was not entitled to raise any ground in this appeal apart from the first two questions formulated in the memorandum of appeal relating to the issue whether the suit was within limitation and which alone were considered to be substantial ques tions of law involved in the appeal when it was admitted to further hearing by this Court on November 11, 1979 and notices directed to issue to the res pondents therein. The question as to whether the suit was within limitation requires consi derations in the first instance for it is answered against the plaintiff-appellant, no other question would survive for determination. For the relief of declaration sought in the suit the period of limitation was three years from the date when the right to sue accrued in terms of Article 113 of the Schedule to the Indian Limitation Act, 1963 for no period of limita tion for a suit of this nature is provided elsewhere in the Schedule. In fact, there is no dispute between the parties that it is this article of the Schedule which would govern the period of limitation. The basic issue, however, is as to when can the right to sue be said to have accrued to the plaintiff in the instant case. The trial Court felt that the suit was within limitation because the plain tiff, according to it, learnt from the letter dated April 23, 1973 (Ext. 2) of the Regional Inspectors of Girls Schools for the first time that he had been permitted to approach the Civil Court for redress. The suit having been filed on October 9, 1973 was well within three years of that date. The trial Court has dealt with this aspect of the case in paragraph 25 of its judgment while considering issue No. 9. It was of opinion that under paragraph 143 (i) of the U. P. Education Code, an appeal and thereafter a second appeal could be filed against an order of termination of services. The plaintiff, according to the trial Court, addressed several communications to the management and to the Regional Inspectors and thereafter to the Deputy Director and the Joint Direc tor of Education, According to it, the Joint Director issued orders for reinstate ment of the plaintiff through his communication dated January, 1969 (Ext. 154 ). The plaintiff's evidence was that he did not come to know of this direc tion at any point of time, The case set up on behalf of the institution, on the contrary, was that the order of dismissal took effect on the date when it was passed, namely, September 6, 1967 and the plaintiff was relieved of his duties, on his own admission, soon thereafter. The period of limitation had, therefore, to be computed with reference to the said date. The suit could not be treated to be within limitation with reference to the communication of the Regional Inspectors of Schools as was being contended for by the plaintiff. Paragraph 143 (i) of the U. P. Education Code 1958 is in the following terms; "headmaster/principal/teacher/clerk with whom the agreement in the prescribed form has not been executed may be dismissed, removed, sus pended or discharged from service, without the prior approval of the Inspector/inspectors. Any order of punishment made by a Managing Committee or on its behalf against a Headmaster/principal/teacher/clerks etc. appeal for which is not provided in the rules or in any form of agreement prescribed to be executed between the management and such Head Master/principal/teacher/clerks, etc. , shall be appealable to the Inspector/inspectress. In the case of Principal/headmaster/teacher/clerk/librarian, a second appeal shall lie from the order of the Inspector Inspectress to the Regional Deputy Director/incharge Kumaun Region in the case of Boys' Institutions and to the Deputy Director (Women) in the case of girls' institutions. The decision of the Deputy Director of the Regional/incharge Kumaun Region of the Deputy Director (Women) shall be final. " Dealing with this paragraph a Full Bench of this Court in Magan Ram Yadava v. Deputy Director of Education and others, ( 1980 A. L. R. 26.) held that it was a mere executive instruction and could not be given the status of a statutory rule and further that an order of termination of services of a number of the clerical staff of an institution cannot be successfully assailed on the ground that the approval of the District Inspector of Schools had not been obtained nor could the order be said to be subject to an appeal before the Deputy Director of Education because of the provision in that regard contained in paragraph 143 (i ). This decision clearly shows that a number of the clerical staff aggri eved by an order of termination of his service has no statutory right to seek redress against the impugned order before the departmental authorities. It follows that he has to seek his remedy before the Civil Court. Apart from the fact that paragraph 143 (i) of the U. P. Education Code does not, as held by the Full Bench, afford statutory remedy to an aggrieved member of the clerical staff, like the plaintiff, it appears clear that the para graph does not contain any provision to the effect that the order of termination will remain ineffective during the pendency of an appeal by the aggrieved employee. No other provision was brought to my notice either in the U. P. Education Code or in the U. P. Intermediate Education Act or the Regulations framed thereunder providing that the aggrieved employee was precluded from approaching the Civil Court for redress without seeking redress from the departmental authorities. In Sita Ram Gael v. The Municipal Board Kanpur and others, A. I. R. 1958 S. C. 1036 the Supreme Court had occasion to consider the question whether a suit filed by an employee who had been dismissed by the Municipal Board was within limitation or not. The resolution dismissing Goel had been passed by the Board on March 5, 1951 and this order was communited to Goel on March 19, 1951. Goel filed an appeal before the State Government which was dismissed and the order of dismissal was communicated by Government to Goel on April 8, 1952. Sub-section (8) of Section 326 of the U. P. Municipalities Act, provided for six months limitation for a suit for declaration of the nature sought by Goel, after the accrual of the cause of action. ' The question was about the date, from amongst the aforesaid, from which the period of limita tion was to be computed. The Supreme Court, after noticing the relevant provisions of the U. P. Municipalities Act, came to the conclusion that the filing or the pendency of an appeal did not suspend the order of dismissal passed by the Board which took effect immediately. The Supreme Court held that the cause of action accrued to Goel the moment the resolution of the Board was communicated to him and that was the date of commencement of limitation. The remedy by way of filing a suit against the Board could be sought by Goel only within the period of limitation provided in Section 326 (3) of the U. P. Municipalities Act computed with reference to that date. The suit of Goel was held to be barred by limitation. The situation in the present case is clearly akin to the one in Goers case. In Shafqat Hussain v. Municipal Board, Sambhal and another A. I. R. 1958 S. C. 1036, Oak, J. (as he then was) ruled that where an aggrieved employee was precluded from seeking a decision in a Court of law in respect of a grievance arising out of his employment or condition of services without first exhausting the normal channel of redress, the period of limitation would have to be computed with reference to the date of refusal to him of the relief by the departmental authori ties. On this basis the learned Judge distinguished the decision in Gael's case. In H. G. Ghata v. Banaras Hindu University, 1980 U. P. Local Bodies and Educational Cases p. 100 the facts were that Ghata, an employee of the University claimed that he was entitled to a higher pay scale than the one fixed for by the University in the year 1956-57. His repre sentation was kept under consideration and in spite of repeated reminders it was only on August 3, 1968 that he was informed that it was not possible to consider his upgrading as he was retiring on January 31, 1969. He filed a suit on September 22, 1969. The trial Court decreed it. The lower appellate Court affirmed the decree in part by upholding the declaration granted by the trial Court in favour of Ghata. It, however, varied the decree in respect of arrears of salary by confining it to a period of three years only on the ground that the claim beyond that period was barred under Article 7 of the Limitation Act, 1963. This Court took the view that the cause of action accrued only upon the refusal in the year 1968 by the University to revise the pay scales of Ghata ami not earlier and that, in these circumstances, no part of the claim of Ghata for arrears of salary in the revised scale could be held to be barred by time. It is obvious that the circumstances in Ghata's case were entirely different from those in the present case. In Shri Bemauri Lal v. Union of India and others, 1974 (2) S. L. R. 56 it was held that the time spent in pursuing a non-statutory departmental remedy could not be taken into consideration for enlarging the period of limitation in a suit assail ing the order of dismissal as illegal. In Sowinder Singh Nihal Singh v. The Punjab State, A. I. R. 1966 Punj. 109 the view taken was that a suit for declaration about the wrongful nature of dismissal of service had to be filed within the prescribed period of limitation computing it from the date of the communication of the order to the aggrieved employee and not from the date of the dismissal of the departmental appeal and revision where the operation of the order of dismissal had not been stayed during the pendency of the appeal and the revision had taken effect when it had been passed. In Shyam Sunder Misra v. Municipal Chairman Pariakimedi A. I. R. 1964 Orissa 111, a Divi sion Bench observed as follows:- "it is true that if the effect of filing an appeal was to suspend the opera-ration of the order of dismissal either by virtue of any special provision in the Orissa Municipal Act or in consequence of the passing of a stay order by the appellate authority, limitation may by saved until the appeal is disposed of as pointed out in Sita Ram v. Municipal Board, Kanpur, (supra ). But here our attention has not been drawn to any pro vision in the Orissa Municipal Act which says that as soon as an appeal is filed by the Municipal servant the order of dismissal is held in abey ance. The plaintiff also did not state that the appellate authority stayed the operation of the order of dismissal. Similarly though the writ appli cation (O. J. C. 286 of 1955) (reported in A. I. R. 1957 Orissa 222) was admitted in 1955 and disposed on 11-5-1957, it is not alleged that inconse quence of the admission of that writ application the High Court stayed the order of dismissal. Thus, in any case, neither the pandency of the appeal nor the filing of the writ application under Article 226 would save limitation. " In that case, a suit filed beyond three years of the date of the order of dismissal, namely, April 1, 1951 for declaration that it was an unlawful order, was held to be barred by limitation. The legal position appears clearly to be that unless there is a statutory right of departmental appeal or revision against an order of termination of service and there is a provision to the effect that the order will not take effect until the disposal thereof or the order is made inoperative in appropriate proceedings or there is a rule requiring exhaustion of departmental remedies before approaching the Civil Court, a suit for declaration that the order of termination was wrongful and illegal must be brought within the period of limitation prescribed for it under the Limitation Act computed with effect from the date of communication of the order to the aggrieved employee. In the present case, the suit was brought beyond three years of the communication of the order of termination to the plaintiff-appellant. It was clearly barred by limitation. Since the plaintiff-appellant failed to file the suit within the period of limitation prescribed under Article 113 of the Schedule to the limitation Act, 1963, it is obvious that he could not successfully seek the relief of declaration or that of recovery of arrears of salary in consequence. The suit had to be dismissed on that ground alone. The lower appellate Court was right in its view that the suit was barred by limitation. The aforesaid conclusion is enough to dispose of this appeal. It is not necessary, therefore, to consider the other questions raised by the parties in the appeal or to express any opinion thereon. The result, undoubtedly is unfor tunate for the appellant and causes hardship to him but on that ground alone it is not possible to interpose relief in his favour. He had succeeded in the trial Court but failed before the lower appellate Court. The peculiar circums tances of the case call for a direction that the parties should bear their own costs of the litigation throughout. The appeal thus fails and is dismissed with this direction. .