1. Heard Sri Anuj Dayal, learned counsel for the appellant, Sri Rajesh Verma, learned counsel for respondents No.1 to 3 and Sri J. B. S. Rathour, learned counsel for respondent No.4.
2. The appellant has filed the present second appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as "C.P.C.") against the judgment and decree dated 14.09.2006 passed by learned Additional District & Sessions Judge/F.T.C., Sultanpur, in Civil Appeal No.135 of 1995, whereby the appeal filed by the respondents No.1 to 3 was allowed.
3. The background facts in a nutshell are as follows:-
4. The appellant, Rajendra Prasad Singh (now deceased) filed an Original Suit No.388/1987, (Rajendra Prasad vs. Committee of Management, Ram Laut Junior High School Rohani Khojagipur and others) for declaration and permanent injunction. The case of the appellant was that he was appointed as Assistant Teacher (Sanskrit) by respondent No.2 herein; services of the appellant were approved by respondent No.4, Basic Shiksha Parishad on 18.07.1984; the appellant was regularly working as a teacher, on 16.05.1987, the respondents threatened that his services will be ended and will not be given any salary.
Hence, the appellant filed a suit seeking relief of declaration that the appellant is approved Assistant Teacher and is entitled for all the benefits of service, the order passed by respondent No.4 is illegal; and the plaintiff also sought relief of permanent injunction that his services be not ended and restraining respondent No.2 from interfering in his services.
5. The suit was contested by respondents No.1 to 3 herein (who were defendants No.1 to 3 in the original suit) by filing written statement. It was stated that the appellant/plaintiff was not eligible for the appointment of Assistant Teacher (Sanskrit) as he was not qualified for the said post; the appellant/plaintiff was never appointed as Assistant Teacher by the Managing Committee of respondent No.1, Ram Laut Junior High School, Rohani Khojagipur (hereinafter referred to as "School"). Neither the appellant-plaintiff ever worked in the School nor any salary was paid to him nor any proceedings were conducted by the Managing Committee on 21.06.1976 and 01.07.1976; Mitrasen Singh real brother of the appellant, namely, Rajendra Prasad Singh, who was employed as a clerk in the School from 1974 to September 1984 and all the documents of the School used to be in his possession. Sri Mitrasen Singh illegally forged some letter regarding appointment of the appellant in the School without the knowledge of the Managing Committee and produced the same before the office of Basic Shiksha Parishad, when it came to the notice of the Managing Committee, an application for cancellation of his approval on the basis of which inquiry was conducted. After receiving the inquiry report, respondent No.4, Basic Shiksha Parishad considered the relevant documents and respondent No.4 canceled the approval of the appellant. The name of appellant was not entered in any register of the School. It was also stated that the appellant has not served notice under Section 80 of the C.P.C. before filing the present suit, suit is barred by Section 38/42 of the Specific Relief Act.
6. Respondent No.4 (defendant No.4 in the original suit) filed a separate written statement, it was stated that the suit is barred by Section 16 of The Uttar Pradesh Basic Education Act, 1972 (hereinafter referred to as " Act, 1972") and the appellant is not entitled to any relief.
7. On the produced of the parties, following issues were framed by the trial court on 06.01.1988:-
"1- D;k oknh izfroknh la0 1 o 2 ds ;gk¡ v/;kid ds in ij gS\ 2- D;k okn U;wu ewY;kadr gS rFkk iznRRk U;k;'kqYd vi;kZIr vnk gS\ 3- D;k oknh dk nkok pyus ;ksX; gS\ 4- D;k nkos esa /kkjk 80 tk0 nh0 dh uksfVl u nsus dk nks"k gS\ 5- D;k okn m0 iz0 vf/kfu;e 34 o"kZ 1972 dh /kkjk 16 ds izko/kkuksa ls ckf/kr gS\ 6- D;k oknh fdlh vuqrks"k dk vf/kdkjh gS\"
8. In support of his case, the appellant examined Sri Om Prakash Yadav as PW-1, Sri Rajedra Prasad Singh (plaintiff) as PW-2. The respondents examined Srinath Verma as DW-1 and Ram Nath Prajapati as DW-2.
9. Vide judgment and decree dated 19.09.1995, the suit was decreed by learned Forth Additional Civil Judge (Junior Devision), Sultanpur. Against the said judgment and decree, respondents No.1 to 3 filed a Civil Appeal No.135 of 1995. Vide judgment and decree dated 14.09.2006, the appeal was allowed and the judgment and decree dated 19.09.1995 was set aside by learned Additional District & Sessions Judge/F.T.C., Sultanpur.
10. Feeling aggrieved by the said judgment and decree, the appellant has filed the present second appeal.
11. During pendency of the appeal, appellant, Rajendra Prasad Singh expired on 11.10.2015 and on an application Sri Pradeep Narayan was substituted as his legal heir vide order dated 24.05.2017.
12. Vide order dated 14.02.2007, my learned predecessor admitted the appeal but no substantial question of law was framed. On 01.04.2019, following substantial questions of law were framed:-
"I. Whether the suit filed by the appellant/plaintiff was maintainable in view of the provisions of Section 16 of the Uttar Pradesh Basic Education Act, 1972?
II. Whether the suit was maintainable in view of the provisions of Section 4 of Uttar Pradesh Public Service (Tribunal) Act, 1976?
III. Whether notice under Section 80 of the Code of Civil Procedure 1908 has been given to the defendant before filing the suit, if not, the effect thereof?"
13. Learned counsel for the appellant submitted that the appellant was appointed as Assistant Teacher (Sanskrit) in the school of respondent No.2 on 01.07.1976, the appellant had been serving in the school and his services were approved by Basic Shiksha Parishad on 18.07.1984. Respondent No.4 rejected the approval for appointment on 07.08.1987 of the appellant without giving any reason and the same is liable to be set aside.
14. Per contra, learned counsel for the respondents urged that the appellant was never appointed as Assistant Teacher in the respondent No.2 School, his name is not entered in any of the register maintained by the School and he was never paid any salary.
15. Learned counsel for the respondents also submitted that the suit is barred by Section 16 of the Act, 1972. Learned counsel for respondent No.4 submitted that the suit is also barred by Section 4 of the Uttar Pradesh Public Services (Tribunal) Act, 1976 (hereinafter referred to as "Act, 1976"). It was also submitted that no notice under Section 80 of C.P.C. was served on the respondents before filing the suit. According to the counsel for the respondents, the suit filed by the appellant has been rightly dismissed by learned first appellate court.
16. I have given my thoughtful consideration to the submissions made by learned counsel for the parties. I have also carefully gone though the material on record.
17. The first question which comes up for consideration is whether the the appellant (now deceased) was eligible for appointment to the post of Assistant Teacher (Sanskrit). The appellant, in his plaint stated that he was inter pass and was appointed as Assistant Teacher (Sanskrit) w.e.f. 01.07.1976. The respondents denied the same and stated that the appellant was not eligible for the appointment of Assistant Teacher, he was never appointed by the Managing Committee of the School. It is also submitted that the deceased appellant never worked in the School. The counsel for the respondents submitted that Sri Mitrasen Singh real brother of the appellant, who was working as a clerk in the School from 1974 to September 1984, all the documents of the School used to be in his possession and he illegally forged some letter alleged to be appointment of the appellant as Assistant Teacher, without the knowledge of the Managing Committee and the said letter was produced before the office of Basic Shiksha Parishad. It is also submitted that when the Managing Committee came to know about the same, an enquiry was conducted and after receiving the enquiry report, respondent No.4, Basic Shiksha Parishad canceled the approval for appointment of the appellant.
18. The Uttar Pradesh Basic Education Act, 1972 was enacted by the State legislature with a stated object of improving the administration of primary education in the State. The legislation was enacted in order to reorganize, reform and expand elementary education in order to secure the object underlying Article 45 of the Constitution. Section 2 (b) of the Act defines the expression 'basic education' to mean education up to the eighth class imparted in schools other than High Schools or Intermediate Colleges. Section 3 contemplates the setting up of a Board of Basic Education. The function of the Board under Section 4 (1) is to organize, coordinate and control the imparting of basic education and teachers' training in the State in order to raise its standards and to correlate it with the system of education as a whole in the State. Section 19 empowers the State Government to make Rules for carrying out the purposes of the Act.
The Rules may extend, inter alia, to the recruitment and the conditions of service of persons appointed to the posts of officers, teachers and other employees under Section 6.
19. In exercise of the power conferred by the Act, the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 were framed. Rule 2(e) defines the expression 'Junior High School' to mean an institution other than a High School or Intermediate College imparting education to boys or girls or both from Class VI to Class VIII (inclusive). Rule 2 (h) defines the expression 'Recognized School' to mean any Junior High School not being an institution belonging to or wholly maintained by the Board or any local body recognized by the Board. Prior to its amendment on 12 June 2008, Rule 4 (1), which prescribed the minimum qualifications for the post of an Assistant Teacher in a recognized school was as follows:-
"4. Minimum Qualification.- (1) The minimum qualifications for the post of Assistant Teacher of a recognized school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination with Hindi and a teacher's training course recognized by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training."
4. With effect from 12 June 2008, Rule 4 has been substituted and sub-rule (1), as it now stands, reads as follows:-
"4. Minimum qualification.- (1) The minimum qualifications for the post of Assistant Teacher of a recognized school shall be a Graduation Degree from a University recognized by U.G.C., and a teachers training course recognized by the State Government or U.G.C. or the Board as follows:-
"1. Basic Teaching Certificate.
2. A regular B.Ed. degree from a duly recognized Institution.
3.Certificate of Teaching.
4. Junior Teaching Certificate.
5. Hindustani Teaching Certificate." "
20. In the present case, the appellant was allegedly appointed as an Assistant Teacher (Sanskrit) w.e.f. 01.07.2006. Thus, the provisions of Rule 4(1) of the unamended Rules would apply. As per Rule 4(1) of the unamended Rules 1978, the minimum qualification for the post of Assistant Teacher shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination with Hindi and a teacher's training course recognized by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training. The appellant (now deceased) did not fulfill the minimum qualification for the appointment of Assistant Teacher (Sanskrit).
21. The first point/ question is whether the suit filed by appellant/plaintiff was maintainable in view of the provisions of Section 16 of the Act, 1972. It is necessary to consider the relevant provisions of Section 16 of the Act, 1972, the same reads as under:-
"16. Bar of jurisdiction of Court. - No order or decision made by the Board or any of its Committees in exercise of the powers conferred by or under this Act shall be called in question in any Court."
22. On a bare perusal of provisions of Section 16 of the Act, 1972 it is manifestly clear that no court has jurisdiction in respect of any order or decision made by the Board or any of its committees under the Act, 1972.
23. From a plain reading of the aforesaid section, it is apparent that a civil court shall have no jurisdiction to entertain, decide or deal any order or decision made by the board or any of the committees in exercise of powers conferred under this Act. In other words, the jurisdiction of the civil court has been ousted only in respect of such questions mentioned therein.
24. It is settled rule of law that where a particular act creates a right and also provides a forum for enforcement of such right and bars the jurisdiction of the civil court then ouster of the civil court jurisdiction has to be upheld.
25. The principles relating to exclusion of jurisdiction of civil court have been summarized by the Hon'ble Supreme Court in the case of 'Dhulabhai etc vs. State of Madhya Pradesh and another', AIR 1969 SC 78 as follows:-
"(1) Where the statute 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 courts would normally do in a suit. Such provision, 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 illegality 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 the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply."
26. The same principles have been reiterated by the Hon'ble Supreme Court in another case of 'Swamy Atmananda and others vs. Sri Ramakrishna Tapovanam and others', (2005) 10 SCC 51. In the said case, the Hon'ble Supreme Court referred the principles of Statutory Interpretation by G.P. Singh, 9th Edition, Page 630 wherein it is stated as under:-
"As a necessary corollary of this rule provisions excluding jurisdiction of civil courts and provisions conferring jurisdiction on authorities and tribunals other than civil courts are strictly construed. The existence of jurisdiction in civil courts to decide questions of civil nature being the general rule and exclusion being an exception, the burden of proof to show that jurisdiction is excluded in any particular case is on the party raising such a contention. The rule that the exclusion of jurisdiction of civil courts is not to be readily inferred is based on the theory that civil courts are courts of general jurisdiction and the people have a right, unless expressly or impliedly debarred, to insist for free access to the courts of general jurisdiction of the State. Indeed, the principle is not limited to civil courts alone, but applies to all courts of general jurisdiction including criminal courts."
27. In the instant case, respondent No.4, Basic Shiksha Parishad has canceled the approval of the appellant vide letter dated 07.08.1987. Thus, the civil court had no jurisdiction to entertain the suit filed by the appellant and the suit is barred by Section 16 of the Act, 1972.
28. The second point/question is whether the suit was maintainable in view of the Provisions of Section 4 of the Act, 1976. Section 4 of the Act, 1976 reads as under:-
"[4. Reference of claim to Tribunal.-[(1) Subject to the other provisions of this Act, a person who is or has been a public servant and is aggrieved by an order pertaining to a service matter within the jurisdiction of the Tribunal, may make a reference of claim to the Tribunal for the redressal of his grievance.
Explanation.-For the purpose of this sub-section ''order' means an order or omission or in action of the State Government or a local authority or any other Corporation or company referred to in clause (b) of Section 2 or an officer, committee or other body or agency of the State Government or such local authority or Corporation or company:
Provided that no reference shall, subject to the terms of any contract, be made in respect of a claim arising out of the transfer of a public servant:
Provided further that in the case of the death of a public servant, his legal representative, and where there are two or more such representatives, all of them jointly, may make a reference to the Tribunal for payment of salary, allowances, gratuity, provident fund, pension and other pecuniary benefits relating to service due to such public servant.] (2) Every reference under sub-section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee in respect of the filing of such reference and by such other fees for the service or execution of processes, as may be prescribed.
(3) On receipt of a reference under sub-section (1), the Tribunal shall, if satisfied after such inquiry as it may deem necessary that the reference is fit for adjudication or trial by it, admit such reference and where the Tribunal is not so satisfied, it shall summarily reject the reference after recording its reasons.
(4) Where a reference has been admitted by the Tribunal under sub-section (3), every proceeding under the relevant service rules or regulation or any contract as to redressal of grievances in relation to the subject matter of such reference pending immediately before such admission shall abate, and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules, regulations or contract.
(5) The Tribunal shall not ordinarily admit a reference unless it is satisfied that the public servant has availed of all the remedies available to him under the relevant service rules, regulations or contract as to redressal of grievances.
(6) For the purposes of sub-section (5) a public servant shall be deemed to have availed of all the remedies available to him if a final order has been made by the State Government, an authority or officer thereof or other person competent to pass such order under such rules or regulations or contract rejecting any appeal preferred or representation made by such public servant in connection with the grievance:
Provided that where no final order is made by the State Government, authority, officer or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant within six months from the date on which such appeal was preferred or representation was made, the public servant may, by a written notice by registered post, require such competent authority to pass the order and if the order is not passed within one month of the service of such notice, the public servant shall be deemed to have availed of all the remedies available to him.
(7) For the purposes of sub-sections (5) and (6) any remedy available to the public servant by way of submission of a memorial to the Governor or to any other functionary shall not be deemed to be one of the remedies, which are available unless the public servant had elected to submit such memorial.]"
29. From a bare reading of Section 4 of the Act, 1976, it is clear that the civil court has no jurisdiction to entertain the suit under the Act, and rather a person aggrieved by an order pertaining to service matter may make a reference of claim to the Tribunal. Thus, the suit filed by the appellant/plaintiff seeking relief of the declaration was per-se not maintainable.
30. The third point/question is that the notice under Section 80 of the C.P.C. before filing the suit was given or the appellant obtained leave of the court as required by sub-Section 2 of Section 80 of the C.P.C. It is not disputed by learned counsel for the appellant that notice under Section 80 of the C.P.C. was required. The object of notice required under this Section is to give the government or the public officer concerned, an opportunity to re-consider the legal position and to settle the claim, if so advised, without litigation.
31. In the present case, in the memo of appeal the appellant has stated that the trial court had exempted the service of notice under Section 80 (2) of the C.P.C. However, on a specific query put to learned counsel for the appellant, the counsel for appellant has not been able to show that any application under Section 80 (2) of the C.P.C. was filed and the trial court allowed the same or granted leave to the appellant as required by sub-Section (2) of Section 80 of the C.P.C.. Thus, it is clear that no notice under Section 80 of the C.P.C. was served on the respondents before filing the suit. That being so, the suit was barred by Section 80 of the C.P.C.
32. For the foregoing reasons, the appeal fails, same deserves to be dismissed and the same is hereby dismissed.
33. No order as to costs.
34. Lower court records be sent back forthwith.
(Ved Prakash Vaish) Judge Order Date:-30.04.2019 cks/-