Sudhindra Mohan Guha, J.
1. This application for revision arises out of an order dated 29th June 1981 passed by Sri B. Bhattacharjee, Additional District Judge, Midnapore, Misc. Appeal No. 227 of 1980 revering the order passed by the Munsif, 1st court. Tamluk, rejecting an application for temporary injunction in title suit No. 243 of 1979.
2. This suit was commenced by O. P. No. 1 Sm. Arati Kar (Malty) against, the petitioner Sm. Usha Das (Ray) and ors. for a declaration that she is the officiating Headmistress of Tulia Sitala Balika Vidyapith and the resignation by the petitioner defendant No. 2 was final and irrevocable and order of approval of appointment of defendant No. 2 dated 2lst Feb. 1978 showing the purported date of the appointment as on 23rd Aug. 1977 was a nullity and invalid and the order of plaintiff's suspension passed by the Administrator was without jurisdiction.
3. Plaintiff's application for temporary injunction was rejected by the Munsif upon the finding that the plaintiff's (petitioners) resignation was duly withdrawn, that the Administrator was legally appointed by the Board and that the Administrator had duly suspended the plaintiff. These findings of Court were reversed in appeal.
4. It is against that order, defendant No. 2 petitioner has come up in revision.
5. Facts, relevant for our purpose and which would appear from the materials on record, may be stated as follows.
6. The petitioner submitted a letter of resignation on 21-9-76 to the Secretary of the School requesting him to release the petitioner with effect from 21-12-76; but this letter of resignation, annexed to the plaint, is stated to be a false and fabricated one by the Administrator. The petitioner also filed a copy of the letter of resignation. But the Secretary by a letter dated 18-12-73 requested the petitioner to withdraw the letter of resignation within a week. Accordingly by a letter dated 24th Dec. 1976 the petitioner withdrew her resignation and prayed for leave from 22-12' 76 to 24-12-76.
7. Thereafter the petitioner on 2-1-1977 made an application for leave on medical ground. In the meeting of the Managing Committee dated 3rd April 1977 the original appointment of the petitioner was approved by the Managing Committee. The Board of Secondary Education appointed the Administrator of the school and he took over the charge on 7th July, 1977.
8. The petitioner reported for duty on 11th Sept. 1977 But Subal Chandra Maity. Secretary of the school, by a letter dated 26th Sept. 1977 intimated that the petitioner's resignation letter was accepted in the meeting, of the Managing Committee dated 5-6-1977. But this was communicated after the appointment of the Administrator. It may be mentioned that one Sri Bharat Chandra Maity filed a title suit being T. S. No. 195 of 1978 in the 1st Court of Munsif, Tamluk, for declaration and injunction regarding the present school and regarding the parties to the present litigation. But that was ultimately withdrawn. Be that as it may, the petitioner reported the matter to the Administrator by a letter dated 3-10-77 who sent a full report to the District Inspector. The District Inspector of schools approved the appointment of the petitioner temporarily as Headmistress for two years with effect from 23-8-1976 by a letter dated 22-2-1978. This letter dated 22-2-1978 was made Annexure 'I' to the plaint. But the date was said to be interpolated and changed from 23rd Aug. 1976 to 23rd Aug. 1977. Subsequently, the petitioner was appointed Headmistress permanently with effect from 24-8-1978.
9. During the absence of the petitioner, the plaintiff O. P. 1 was asked to act as a 'teacher in charge' by an order dated 7th July 1977 annexure 'C' to the plaint. The Administrator by a letter dated 25th Mar. 1978 terminated the functioning of the plaintiff as teacher in charge on 27-3-1978, and by an order dated 25-3-1978 the Administrator directed the petitioner to join on 27-th Mar. 1978. By an order dated nth May 1978 the Administrator asked the plaintiff/O. P. No. 1 to hand over all the documents to the petitioner. Ultimately, the plaintiff was suspended by an order dated 9th Aug. 1978. The suit by the plaintiff was filed on the 20th August 1979. Herein the plaintiff by annexure D gave out that the Administrator by an order dated 6th Sept. 1977, directed her to officiate as Headmistress of the school till the joining of the duly approved Headmistress. This letter was said to be false by the Administrator himself, it is pointed out that in the booklet published by the petitioner (plaintiff) herself the petitioner (plaintiff) described herself as teacher in charge, which she would not have done had she really been appointed as officiating Headmistress from 10-9-1977.
10. Mr. S.B. Bhunia learned Advocate for the petitioner points out from the above mentioned facts that the order of suspension was in force when the plaintiff commenced the suit. But the Appellate Court, according to him, injuncted the approved Headmistress and a suspended teacher was allowed to function. In doing so, the learned Appellate Court observed that the alleged letter of withdrawal by defendant No. 2 petitioner was submitted two days after the expiry of the period of three months. It is argued by Mr. Bhunia that the learned Judge overlooked that before the expiry of three months the Secretary refused to accept and requested the petitioner to withdraw the same within a week from 18-12-1976. So, the petitioner was either to agree or refuse reconsideration. So, the period of three months was extended by a week. In this view of the matter, the letter of resignation cannot be irrevocable and final.
11. The learned Judge held that the suspension order of O. P. No. 1 was bad because it was passed one year after the appointment of the Administrator and Rule 8 (3) does not permit such appointment. It is contended by Mr. Bhunia that subsequently D. I. and Board accepted the Administrator as Administrator and asked him to follow up the suspension order by disciplinary proceeding, in Annexure 'U' it is contended that the terms of the Administrator were extended and he was allowed to continue to 30-10-1981 and thereafter to 31st Dec. 1981. By the impugned order again the learned Judge upheld the validity of the appointment of the Administrator as he permitted him to fill up the post of Headmistress.
12. Lastly, it is contended by Mr. Bhunia that the school is not a statutory authority, the contract of service is a 'private contract and prospective resignation can be withdrawn at any time before it is accepted by a resolution of the Managing Committee.
13. It is pointed out by Mr. Bhunia with reference to the decision in the case of subh Narayan Sinha v. Hari Singh Havalakha reported in (1975) 79 Cal WN 672 that in India the specific performance of an act rested on personal volition or contract is forbidden under the Specific Relief Act 1877. Where specific obligations are incorporated under a statute equitable considerations can hardly arise, The Managing Committee of a school constituted in accordance with the rules framed under the west Bengal Secondary Education Act 1950 is neither a body corporate nor a statutory body. An employee of such a school does not acquire a statutory status, Again, the remedy of such an employee is in damages and not by way of declaration.
14. A contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contract subsists and the employee even after having been removed from service can be deemed to be in service against the will and consent of the employer, He refers to the decision of the Supreme Court in the case of Executive Committee of Vaish Degree College v. Lakshmi Narain reported in : (1976)IILLJ163SC . So, it is contended that if the suit itself is not maintainable an order of injunction cannot follow. Next reference is made to the decision of Justice p. B. Mukherji (As his Lordship then was) in the case of Baidyanath Bose v. Smt. Sudha Roy reported in (1966) 70 Cal WN 571. He specifically draws my attention to para 18 of the report at p. 577. This para as it involves important points of law can be reproduced herein :
'This point can also be viewed from another angle. In making an order under Section 21 of the Specific Relief Act or making a declaration that the plaintiff is still continuing as a teacher of the school under Section 42 of the Specific Relief Act or even granting an injunction to the plaintiff restraining the school committee from interfering with her duties as a teacher the court exercises a discretionary power in the nature of an equitable relief although in India granted by the Statute of Specific Relief Act. Nevertheless the discretion is always with the court. To force a teacher on the Managing Committee where she is not wanted may not in the facts of this case be conducive either to the cause of education, school or even the plaintiff teacher herself. On that ground the court would be justified in not exercising that discretion to grant reinstatement even if it had the power to do so, as it has the power to grant injunction. This is only on the exercise of the Court's discretion in respect of such a relief as reinstatement or injunction where there has been a wrongful dismissal from service. In that view of the matter it will not be necessary to discuss such decisions as State Medical Faculty of West Bengal v. Kshiti Bhusan Dutt, : AIR1961Cal31 the Special Bench decision in Nripendra Nath Bagchi v. Chief Secretary, Government of West Bengal, : (1961)IILLJ312Cal which is recently affirmed by the Supreme Court and Barada Kanta Adhikari v. State of West Bengal, : (1963)ILLJ149Cal .'
15. Next it is contended by Mr. Bhunia that the plaintiff o. P. No. 1 being appointed as on an officiating basis or on a temporary basis cannot claim any right to the post by way of declaration. He relies on the decision of the Supreme Court in the case of Union of India v. K. R. Tahiliani reported in : 2SCR1092 . With reference to the decision in the case of Republic Stores (Trade) v. Jagajit Industries Ltd. reported in (1077) 81 Cal WN 646 : (AIR 1978 NOC 76), Mr. Bhunia reiterates his points that the plaintiff's suit is barred under Section 34 of the Specific Relief Act and if main relief cannot be granted in the suit the question of granting an injunction cannot arise at all. It is held in the decision referred to above that no injunction can be granted for the specific performance of a contract which is determinable at the will of the parties.
16. As to the withdrawal of the resignation it is contended by Mr. Bhunia that the petitioner is not a Government servant and that letter of resignation cannot be operative unless accepted by the Managing Committee. In this case the rule of three months, according to Mr. Bhunia, would not be applicable because of subsequent facts and circumstances as to the request of withdrawal by the Managing Committee. According to him the letter of resignation was withdrawn before it finally became operative. Reference is also made for guidance to the decision of the Supreme Court in the case of Union of India v. Gopal Chandra Misra reported in : (1978)ILLJ492SC .
17. In conclusion, it is contended by Mr. Bhunia that under Section 34 of the Specific Relief Act the plaintiff has no legal character to maintain the suit and she has not and cannot claim any further relief to oust the Headmistress the petitioner appointed by the authority by way of injunction. She should have availed of statutory remedy of appeal and cannot come to court. If the plaintiff O. P. No. 1 had any reasons to be aggrieved by the decision of the Administrator she was to file an appeal under Section 22 (3) of the West Bengal Board of Secondary Education Act, 1963. It is argued by Mr. Bhunia that it is somewhat peculiar that the plaintiff did not pray for any order of injunction against the Administrator. It is also contended by him that it was pointed out to the Appellate Court that O. P. No. 1 used a false document to claim that she had been officiating as the Headmistress. But the learned Judge by-passed the issue by holding that there is no difference between teacher in charge and officiating post, overlooking altogether the real point that the plaintiff O. P. No. 1 came to court with unclean hand. According to him, the learned Judge also overlooked the fact that even if officiating the post or being teacher in charge she cannot have right to the post of Headmistress in view of the position of the approval of defendant No. 2 the present petitioner to the post of Headmistress by the District Inspector.
18. Learned Judge held that the suspension order of O. P. 1 is bad because it was passed after one year of the appointment of the Administrator and Rule 8 (3) does not permit such an order. But subsequently the District Inspector and the Board accepted the Administrator as the Administrator of the school and asked him to follow up the suspension order by disciplinary proceeding. The injunction order thus stultifies the disciplinary proceeding and interferes with the internal management of the school.
19. As to the balance of convenience and incovenience it is stated that the approved Headmistress has been injuncted causing great loss to the service and her salary. The suspended teacher on the other hand has been allowed to reap the benefits, and thus prejudging the issue in the suit.
20. Mr. J. N. Maity, learned Advocate for the Administrator, defendant No. 1 practically adopts the arguments advanced by Mr. Bhunia and makes reliance on the decisions discussed above.
21. Mr. J. K. Banerjee, learned Advocate for O. P. No. 1, points out at the outset that O. P. No. 5 has no locus standi to take part in the proceeding, as he was not a party in the original suit. It is pointed out by Mr. Maity that O. P. No. 5 came in place of the Administrator defendant No. 1 in the original suit and he also filed written statement.
22. As to the jurisdiction of this court with reference to the decision of the Supreme Court in the case of Managing Director, Hindusthan Aeronautics Ltd., Balanagar, Hyderabad v. Ajit prosad Tarway reported in : (1972)ILLJ170SC and specially referring to para 5 of the report at p. 77 it is argued by Mr. Banerjee that the order of the first Appellate Court may be right or wrong may be in accordance with law or not but one thing is clear that it had jurisdiction to make that order. So that order must not be interfered by this court in revision. Mr. Banerjee also makes reference to the decision of the Supreme Court in the case of State of M. P. v. Lakshmi Shankar Mishra reported in : 3SCR630 in this connection. But that decision, to my mind, has no application. It is held therein that the period during which one acted in officiating capacity should be taken into account for computing the length of service.
23. Then with reference to Regn. 9 framed under West Bengal Board of Secondary Education Act it is contended by Mr. Banerjee that the plaintiff O.P. No. 1 was under no obligation to prefer an appeal against the decision of the Managing Committee or for the matter of that of the decision of the Administrator, to the appeal committee.
24. It should be remembered that the order of Administrator was against the plaintiff affecting her service. So she should have preferred an appeal to the appeal committee, as required under Section 22 and Regn. 9.
25. As to the jurisdiction of this court it appears that the learned Judge failed to exercise jurisdiction vested in him in not appreciating the materials on record and as such exercised jurisdiction illegally or with material irregularity.
26. Again if the order be not reversed, there would be failure of justice and cause irreparable injury to the petitioner. The petitioner has been deprived of her post of Headmistress and thus disentitling her to the regular salary and other benefits and on the other hand O. P. No. 1 would get her usual pay etc. as an Assistant teacher, in case there be no order of suspension, even if there is no order of injunction.
27. In this view of the matter, to my opinion, the impugned order cannot be allowed to stand. It is thus vacated. The order passed by the learned Munsif is restored,
28. The Rule is accordingly made absolute with costs. Hearing fee is assessed at 5 gold mohurs.