- (1.) R. K. Mahajan, J. This is a second appeal against the judgment and decree dated 26-4-1986 passed by Sri S. C. Srivas tava, 1st Additional District Judge, Bulandshahr dismissing Civil Appeal No. 206 of 1982 and affirming the judgment and decree dated 16-4-1982 passed by Sri Gyanendra Singh, Ilnd Additional Munsif, Bulandshahr decreeing original suit No. 273 of 1980, Bani Singh Yadav v. Com mittee of Management and another.
(2.) THE brief facts of the case are these. THE petitioner-respondent filed the suit against the appellant as well as the respon dent No. 2 alleging that he was appointed as Assistant Libraring in Rashtriya Higher Secondary School, Ismailpur on 1-1-1974 and was confirmed w. e. f. 1-1-1975. THE Principal of the school developed ill-will and grudge against the plaintiff thinking that he was favouring the former Manager Rajesh Yadav a and suspended him vide order dated 15-9-1979. THE plaintiff made a representation against the suspension order to the Principal on 17-10-1979 and to the Manager on 29-11-1979 but without any effect. A charge-sheet dated 20-9-1979 was received by the petitioner-respondent on 28-9- 1979 per registered post to which the plaintiff sent his reply to the Principal on 17-2-1979. An enquiry officer was appointed who issued a notice to the plaintiff calling him to appear before him on 31-10- 1979. THE plaintiff appeared and asserted that the charges were false and frivolous. However, the enquiry officer made no en quiry nor recorded any evidence and the plaintiff was not given opportunity to cross-examine any witness. It was further alleged by the plaintiff that the enquiry officer did not given his report to the plaintiff. Later on, the plaintiff was in formed by the Principal on 9-11-1979 that his services had been terminated. THE plaintiff filed an appeal before the Com mittee of Management and the then manager of the school informed him vide letter dated 12-1-1980 that his appeal had been rejected. THEn the plaintiff filed an appeal before the District Inspector of Schools who too had rejected the appeal by his order dated, 5-9-1980. It was claimed that the order of termination passed by the Principal on 12-1-1980 and the orders rejecting appeals were illegal and ultra vires. THE plaintiff claimed a dec laration that the order of termination and the orders rejecting appeals were illegal and void and the plaintiff continued to be the Assistant Librarian of the said school. The suit was contested by the ap pellant only on the ground that the plain tiff was appointed as a Library Assistant and not Assistant Librarian though he was confirmed w. e. f. 1-1-1975. It was admitted that the plaintiff was suspended on 15-9-1979 and after enquiry, he was terminated. It was also admitted that he had filed the appeals which had been dismissed. It was alleged that the plaintiff was only a class IV employee and there were serious char ges against him. It was denied that the Principal had any ill-will against the plain tiff or the order passed was mala fide. It was alleged that the plaintiff had been given full opportunity of being heard and his services had been validly terminated. It was pleaded that the plaintiff was not en titled to the declaration claimed and the suit was not maintainable in respect of the declaration. The trial Court after considering the material evidence on record found that the suit was maintainable. The trial court also held that the plaintiff had not been given full opportunity of being heart resulting in to non-observance of prin ciple of natural justice before terminating his services and the compliance of Regula tions 36 and 37, framed under the U. P. Intermediate Education Act had not been made. In this way, the termination order was illegal and on these finding, the decree was passed. On an appeal, the lower Ap pellate Court, affirmed the finding of the trial court and dismissed the appeal. The second appeal has been filed against the orders of both the courts below.
(3.) THE appeal was admitted by this Court on ground No. 4, formulated in the memo of appeal, which raises a substantial question of law. THE ground No. 4 runs as under: "4. Because the contract of service could not be specifically enforced. View taken to the contrary by the courts below is erroneous. " I have heard the learned counsel for the parties at length. I have also perused the entire records of the case as well as perused the judgments of both the courts below carefully. Sri B. D. Mandhyan, learned coun sel for the appellant, has submitted that the specific contract cannot be enforced and the view taken by the courts below is erroneous. This question has been ex amined by this Court (by me) in Second Appeal No. 2768 of 1984, Kaneez Fatima v. The Principal, Hamidia Girls Inter College, Allahabad. In this case a suit for declara tion and injunction was filed by the plain tiff Kaneez Fatima. The trial Court decreed the suit. However, on an appeal, the lower Appellate Court, allowed the appeal after setting aside the judgment of the trial Court against which the second appeal was filed raising the question of maintainability of the suit where in it has been held that the suit for declaration lies regarding the termination of the services of the employee and he can get his rights declared. In view of the changing condi tions of the society and education declared a fundamental right in Unnikrishna's case the educational institutions are also getting aid from the Government, the in stitutions are expected to follow the fair procedure before terminating the services of employees.;