Masud, J. - (1.) This is an appeal against the judgment and decree dated 2nd August, 1961 whereby the plaintiff-respondent was granted a declaration that the order terminating her service was bad in law and was also awarded a decree for Rs. 30,000/- with a condition that if payment was made by the Union of India and the latter would not prefer an appeal, the plaintiff would be willing to accept Rs. 20,000 in full satisfaction of her claim. The facts of the case may be briefly stated as follows:
(2.) The plaintiff, Srimati Jyotirmoyee Sharma by a letter in writing dated 7th June 1949, was appointed to a permanent post of Anthropologist in the Department of Anthropology on an initial salary of Rs. 440 p. m. Prior to such appointment she was already working as a temporary Anthropologist in the said department. She was selected for the new post in pursuance of an advertisement issued by the Federal Public Service Commission for recruitment of one Anthropologist in the Anthropological Survey of India (Central Survey, Class I). The advertisement contained inter alia, the following statements: 6. The post is permanent and pensionable. 7. Persons appointed will be on probation for a period of two years. The appointment can be terminated during the probationary period without reasons being given. ..... 12. Pay :--Rs. 350-350-380-380-30-590-E. B.-30-770-40-850. Higher initial pay upto a maximum of Rs. 440 may be granted, as a special case, to a specially qualified and experienced candidate." The plaintiff is a highly qualified candidate with the University degree of B. A., M. A. and also Ph. D. in Sociology at the University of Chicago, U. S. A. with previous experience in the Anthropology Department. The Federal Public Service Commission, after interview, selected her for the post and the terms of appointment were set out in a letter dated 7th June, 1949 addressed to her by the Director of Anthropology, Indian Museum, Calcutta. On the same day, the plaintiff relinquished the charge of her previous office of temporary Anthropologist in the Department of Anthropology and joined her new post. By a letter dated 11th June, 1952, the plaintiff's service was terminated by the Director of Anthropology, Shri B. S. Guha. Prior to the said order terminating her service, the plaintiff was given opportunity to meet certain allegations against her and a long correspondence passed between the plaintiff and the Government of India authorities in which she denied the charges and demanded an enquiry. The Union Public Service Commission after consideration of the said allegations against her and her replies thereon came to the conclusion that she should not be confirmed in the said post and her service should be terminated. The plaintiff thereafter instituted this suit for a declaration that the said order of termination is void and illegal and also for a declaration that the plaintiff would remain entitled to hold the office of Anthropologist after the said termination. Alternatively, she also claimed a decree for Rs. 5,34,804/-particulars of which are set out in paragraph 15 of the plaint. The learned Judge in the court below, after examining the oral and documentary evidence adduced in the case, granted her a declaration that the said order dated June 11, 1952 is illegal and void. The leaned Judge also granted her a conditional decree for Rs. 30,000 as stated above and also interest at 4% per annum.
(3.) The first contention of Mr. G.P. Kar, learned counsel for the appellant, the Union of India, is that the plaintiff is not entitled to get any relief in the suit inasmuch as there was no valid and binding contract between the plaintiff and the Union of India. The plaintiffs contract of service cannot be enforced as it contravened the provisions of Section 175 (3) of the Government of India Act, 1935 and/or Article 299 of the Constitution of India. There are decisions of this Court and other High Courts in support of the arguments advanced by Mr. Kar, but we prefer to follow the recent Division Bench judgment of this Court in State of West Bengal v. Sarat Chandra Chakravorty (unreported), Appeal No. 146 of 1950, delivered by A.C. Sen and T.P. Mukherjee, JJ. on 16th September, 1965 (Cal). This Bench after examining large number of decisions for and against such contention, came to the conclusion that the contract of service with the government officers cannot be struck down for non-compliance with the said provisions. Even assuming Mr. Kar's contention to be correct, the plaintiff's appointment is substantially in compliance with the provisions of Section 175 (3) of the Government of India Act. The letter dated June 2, 1949 addressed by the Undersecretary, Ministry of Education, Government of India to the Director, Department of Anthropology, specifically states that the Governor-General has, on the recommendations of the Federal Public Service Commission, selected Dr. Sarma for appointment to the permanent post of Anthropologist. This letter read with the letter of the Director of Anthropology dated June 7, 1949 addressed to the plaintiff offering the said post to the plaintiff and also the plaintiff's reply on the same date accepting the offer could be reasonably construed to be in accordance with the letter and spirit of Section 175 (3) of the said Act. It may be added here that the letter dated January 9, 1952 also mentions the fact that President of India had decided to terminate her service.;