JUDGMENT D.K. Seth, J.
1. The petitioner had filed a suit for a declaration that his termination of service is illegal and invalid and that he is entitled to continue in service as well as to the payment of salary. A preliminary issue was framed as to the maintainability of the suit. The trial court had held that the suit is not maintainable. Against the satd order. Misc. Appeal No. 13 of 1989 was preferred. The said appeal was allowed and it was held that the suit is maintainable as framed. Learned counsel for the petitioner Mr. K. P. Bajpayee had argued that in view of the provisions contained in Section 6 of the U. P. Public Service Tribunal Act, the suit is not maintainable. He also contended that even if the suit is not barred by Section 6 of the said Act by reason of Chapter 111 of the Regulation framed under the U. P. intermediate Education Act, 1921, the civil court can assume jurisdiction in respect of termination of service of an employee other than teacher.
2. Sri G. D. Misra, learned counsel for the respondent No. 4, on the other hand, contended that the civil suit is maintainable and he had referred to several judgments on this point. According to him, the petitioner not being a public servant within the meaning of Section 2, clause (b). Section 6 of the U. P. Public Service Tribunal Act 19 of 1976 cannot be attracted. According to him by reason of this specific provision contained in Section 16G (4) of the U. P. Intermediate Education Act, the bar of suit provided therein applies in relation to the persons covered by sub-section (3) thereof. Sub-section (3) covers only the teachers and not other employees of a recognised school. The petitioner being other employee of a recognised school, such bar cannot operate against him in respect of filing of the suit.
3. After having heard both the learned counsel. It appears that the petitioner cannot be said to be a public servant as defined in Section 2 (b) of the U. P. Public Service Tribunal Act. 1976 since he is neither in the service nor in the pay of State Government nor of a local authority or any other corporation owned or controlled by the State Government. The said definition does not include an employee other than teachers in a recognised school. Therefore, Section 6 of the said Act cannot be attracted to bar the suit in respect of termination of service as rightly contended by Mr. G. D. Misra, learned counsel for respondent that Section 16C (4) does not bar a suit in respect of termination of service of an employee other than teacher of a recognised school. Regulation 31 of Chapter III of the said Regulation framed under the U. P. Intermediate Education Act, does not specify that a suit is barred while prescribing certain other remedies therein. When Section 16G (4) has deliberately omitted to include other employees while creating bar of suit in respect of conditions of service, the same embargo cannot be introduced through rules, which the Act had omitted to incorporate. There cannot be any rule framed contradicting the Act itself. Therefore, the bar provided in the U. P. Intermediate Education Act against filing of the suit, does not operate in respect of termination of service of an employee other than teacher, in a recognised school.
4. Now such suit is subject to Section 14 of the Specific Relief Act in respect of the contract of employment which cannot be specifically enforced. But this provision does not preclude a person from seeking a declaration of some right arising out of his employment under Section 34 of the Specific Relief Act. It was so held in the case of Ashok Kumar Srivastaua v. National Insurance Company Limited, 1998 (33) ALR 386. In the said judgment, it was held as follows :
"Though Specific Relief Act widens the spheres of the civil court its preamble shows that the Act is not exhaustive of all kinds of specific reliefs." "An act to define and amend the law relating to certain kinds of specific relief. It is well to remember that the Act is not restricted to specific performance of contracts as the statute governs powers of the Court in granting specific reliefs in a variety of fields. Even so. the Act does not cover all specific reliefs conceivable. Its preceding enactment (Specific Relief Act, 1877) was held by the Courts in India as not exhaustive vide Ramdas Khatauu v. Atlas Mills. In Hungerford Investment Trust Ltd. v. Haridas Mundhra and others, this Court observed that Specific Relief Act, 1963, is also not an exhaustive enactment and it does not consolidate the whole law on the subject." As the preamble would indicate, it is an Act to define and amend the law relating to certain kinds of specific relief. It does not purport to lay down the law relating to specific relief in all its ramification."
Chapter II, contains a fasciculus of rules relating to specific performance of contracts. Section 14 falls wilhin that Chapter and it points to contracts which are not specifically enforceable. Powers of the Court to grant declaratory reliefs are adumbrated in Section 34 of the Act which falls under Chapter VI of the Act. It is well to remember that even the wide language contained in Section 34, did not exhaust the powers of the Court to grant declaratory reliefs. In Veruareddi Ramaraghava Reddy and others v. Konduri Seshu Reddy and others and in M/s. Supreme General Films Exchange Ltd. v. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and others, this Court while interpreting the corresponding provision in the preceding enactment of 1977 (Section 42) has observed that "Section 42 merely gives statutory recognition to a well-recognised type of declaratory relief and subjects it to a limitation ; but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Section 42." The position remains the same under the present Act also. Hence the mere fact a suit which is not maintainable under Section 14 of the Act is not to persist with its disability of non-admission of civil courts even outside the contours of Chapter 11 of the Act. Section 34 is enough to open the corridors of civil courts to admit suits filed for a variety of declaratory reliefs."
5. Thus, it seems that a suit is maintainable to the limited extent under Section 34 relating to the declaratory decree declaring the right of the petitioner under Section 34 of the Specific Relief Act, subject to the restriction of Section 14 thereof. Therefore, the order impugned does not suffer from any infirmity, for which it can be set aside.
6. It is contended by the learned counsel for the respondent that since injunction has been prayed for in the suit, the same is not maintainable in view of the Allahabad Amendment of Order 39, Rule 2 of the Code of Civil Procedure.
7. The above contention appears to be devoid of merit inasmuch as by adding the proviso to sub-rule (2) of Rule 2, Order XXXIX, C.P.C. by the U. P. Act No. 57 of 1976, the cases where injunctions can not be granted, has been specified. In clause (b), the operation of an order of transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of or taking charge from any employee, including any employee of the Government, cannot be stayed. The said proviso applies to the grant of injunction. Even if there is a prayer for injunction, the same may not be available to the plaintiff either by way of temporary or mandatory or permanent injunction by reason of such amendment. But that will not preclude the plaintiff from seeking the relief of declaration without any injunction either permanent or mandatorv, as the case may be.
Therefore, the plaintiff may not claim the relief of reinstatement. But he may very well claim declaration of his rights under Section 34 of the Specific Relief Act, subject to the limitation of Section 14 thereof, read with Order XXXIX, sub-rule (2) proviso inserted by U. P. Amendment Act No. 57 of 1976 in the Code of Civil Procedure.
8. Therefore, as observed above, the suit is maintainable.
9. At this stage, learned counsel for the respondent submits that respondent No. 4 being a workman within the meaning of Section 2(s) of the U. P. Industrial Disputes Act, his client may prefer the remedy provided in the Industrial Disputes Act. Whether he will do so or not, it is upto him. It is always open to him to choose as to which course he will adopt. Therefore, whether he will persue his remedy in the suit or he will approach the Industrial Forum, is absolutely in the discretion of respondent No. 4, who may exercise such discretion as he may be advised. It will be open to him to seek his remedy at appropriate forum as may be permissible in law.
10. With these observations, this writ petition is, therefore, dismissed. There will, however, no order as to costs.