Holding

Mandamus cannot be issued to continue a contractual appointment after its term expires, and a court must not award relief not prayed for in the writ petition.

Summary

The India Literacy Board, a society registered under the Societies Registration Act, appointed the respondents as teachers on a fixed‑term contractual basis for periods ranging from eight to thirteen years. After the contracts expired, the Board advertised fresh recruitment, but the respondents filed a writ petition under Article 226 seeking to quash the advertisement, to restrain any selection, and to compel the Board to continue employing them and pay their salaries. The Allahabad High Court, as an interim measure, stayed the selection and later directed that the respondents be allowed to work for one month and be paid salary, although the respondents were not actually working. On appeal, the Supreme Court held that mandamus cannot be issued to continue a contractual appointment beyond its term, that a court cannot grant relief not prayed for, and that the Board is not a state instrumentality. The Court directed the High Court’s single judge to hear the main writ petition on its merits and disposed of the civil appeal without costs.

Issues considered

Whether a writ of mandamus can be issued to continue a contractual employee in service after the expiry of the contract.
Whether the High Court may grant relief that was not prayed for in the writ petition.
Whether the India Literacy Board is an instrumentality of the State within the meaning of Article 12, making the writ petition maintainable.
Whether salary is payable to a contractual employee who is not actually working (no work, no pay).

Legislation cited

Constitution of Indias. Article 12, s. Article 226
Societies Registration Act, 1860

Subjects

contractual appointmentmandamuswrit of certiorariArticle 226Article 12state instrumentalityno work no payinterim reliefeducation society

Judgment

A INDIA LITERACY BOARD AND ORS.
v.
VEENA CHATURVEDI AND ORS.

FEBRUARY 21, 2005

B [ASHOK BHAN AND DR.·AR. LAKSHMANAN, JJ.]

Constitution of India-Article 226 :

Writ of Mandamus-Issuance of-Held : Mandamus cannot be issued
C for continuing the appointee in service after expiry of contractual period
Writ Petition-Relief not prayed for, granted by High Court before final
disposal-Propriety of-Held: Not proper for High Court to award relief not
prayed for, even before the disposal of the main case.

D Respondents were appointed as teachers by the Appellant-Society on
contractual basis for a fixed period. After expiry of the contractual period,
Appellant issued an advertisement for fresh recruitment of teachers.
Respondents were eligible to apply again. However, instead of applying
they preferred writ petition for quashing the advertisement and seeking
)<
E mandamus to appellant to allow them to continue as teachers. Single Judge
of High Court, as an interim measure directed appellant to withhold
'
implementation of any selection till the next date of hearing. Aggrieved
by interim orders, appellant approached the Division Bench, and it held
that since respondents had served for a period 8-13 years, appellant would
not suffer any loss if respondents were allowed to work as teachers for
F one month more. In compliance of the above order, appellant paid salary
to the teachers. Thereafter, respondent filed an application seeking
clarification of the order of Division Bench contending that the purport
of order was to allow the respondents to work and pay them their salary
till decision of the Writ Petition. The said application was posted before
G another Division Bench, and it held that respondents should be paid salary
in terms of the order passed by the Single Judge. Hence the present appeal.

Disposing of the appeal, the Court

HELD : 1. In a case of contractual appointment for a fixed term,
H 200
INDIA LITERACY BOARD v. VEEN A CHA TURVEDI 201
mandamus cannot be issued for continuing the appointee in service. In A
the present case as an interim measure a direction has been given by the
High Court to issue appointment orders, which was not even the main
relief claimed in the writ petition. 1208-CJ

2. Though a specific direction was given by the Division Bench to
pay salary for one more month in pursuance of the interim order, the said B
order had been wrongly interpreted by another Division Bench of the High
Court. Admittedly, the respondents are not working in the school. When
they are not working in the school, they are not entitled to any salary by
applying the rule of no work, no pay. It is not in dispute that the
Management has issued an advertisement inviting applications from C
eligible candidates. The respondents have in fact not applied for the post
in question in response to the advertisement, instead they chose to invoke
the extraordinary jurisdiction of the High Court under Article 226 of the
Constitution of India. 1208-E, Fl

3. The question raised in the writ petition is an arguable one. The D
affidavits and counter affidavits have already been exchanged and,
therefore, in the interest of justice a direction is issued to the Single Judge
of the High Court to take up the main writ petition itself for final hearing
and dispose of the same on merits including the maintainability of the writ
petition .. (208-G, H; 209-AJ
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1317 of2005.

- From the Judgment and Order dated 8.5.2003 of the Allahabad High
Court in C.M. Application No. 18906/2002 in S.A. No. 296 (S/B) of 200 I.

Mahabir Singh, Rakesh Dahiya, Madhusmita Bora and Gagandeep for F
the Appellants.

Mrs. Shobha Dikshit and Pradeep Misra for the Respondents.

The Judgment of the Court was delivered by
G
DR. AR. LAKSHMANAN, J. Leave granted.

This civil appeal is directed against the final judgment and order dated
08.05.2003 passed by the High Court of Judicature at Allahabad, Lucknow
Bench in C.M. Application No. 18906/2002 in Special Appeal No. 296 (S/
B)/2001 whereby the High Court has dismissed the petition. H
202 SUPREME COURT REPORTS [2005) 2 S.C.R.

A The appellant - India Literacy Board is imparting education to children
upto Class VIII at Lucknow, which ~·is now a separately registered society
under the Societies Registration Act, 1860. The respondents were appointed
as teachers on purely contractual basis subject to the tenns and conditions
which were made part of the written contract duly executed by the respondents
B respectively for fixed periods. An advertisement was got published by the
\......
Management of the appellant-Board for appointment of teachers. The
respondents along with others were eligible to apply again for fresh contractual
employment. The respondents instead of applying in response to the
advertisement chose to approach the High Court by filing writ petition No.
2917 (S/S)/2001, praying for the following reliefs : ·
c "(a) to issue a writ, order or direction in the nature of Certiorari
quashing the advertisement as published in "Dainik Jagran" dated
6.6.200 I, the true copy of which is contained as Annexure-22 to the
writ petition, as it relates to the post of Assistant Teachers of Welthy-
fisher Children's Academy, India, India Literacy Board, Literacy
D House, Kanpur Road, Lucknow, held by the petitioners.

(b) to issue a writ, order or direction in the nature of Mandamus
commanding the opposite parties not to hold any selection and
appointment from outside against the post of Assistant Teachers against
which the petitioners have been working since last many years pursuant·
E to the impugned advertisement contained in Annexure-22 to the writ
petition.

(c) to issue a writ, order or direction in the nature of Mandamus
commanding the opposite parties to allow the petitioners to continue
as Assistant Teachers of Welthy-fisher Children's Academy, India,
F India Literacy Board, Literacy House, Kanpur Road, Lucknow and to
pay to the petitioners their salary at par as admissible to an Assistant
Teacher of a Basic School run and managed by the "U.P. Basic
Shiksha Parishad" together with all allowances as also together with
the arrears of salary."
G They alleged that the appellant-Society is an instrumentality ·of the
State within the meaning of Article 12 of the Constitution of India.

On 21.06.200 I, the High Court passed the following interim order :

"Learned counsel for the petitioners has pointed out that in
H pursuance of the advertisement dated 6.6.200 I which has been annexed
INDIA LITERACY BOARD v. VEENA CHA TURVEDI [LAKSHMANAN, .1.) 203

as Annexure-2 l to the writ petition, the respondents are going to A
make selection although the petitioners are working with the
respondents since last 8-13 years. In view of this, it is hereby provided
that this matter be listed before appropriate Bench on 3.7.2001.

In the meantime, any selection is finalized, that will not be
implemented till 3.7.2001." B
The writ petition was again listed on 03 .07 .200 l. The appellants raised
a preliminary objection regarding the maintainability of the writ petition
itself. The case was listed again on 19.07.2001. Counter and rejoinder affidavits
were exchanged between the parties. The appellants filed an application for
vacation of the ex-parte interim order. dated 21.06.200 l. It was submitted by C
counsel for the appellant that the respondents are in a purely contractual
employment and t.ave no right to continue in service and their grievance is
also not amenable to writ jurisdiction. In support of their contention, certain
rulings of the Allahabad High Court and other rulings were relied on.

Feeling aggrieved by the interim orders dated 21.06.2001 and D
20.07.200 I, which according to the appellant amounts to final decision, the
appellant filed a special appeal before the Division Bench of the High Court.
The Division Bench passed the following order :

"We are of the view that any observation of ours in the present E
special appeal will ultimately prejudice the case of the parties before
Hon'ble the single Judge in the pending writ petition, hence we desisted
ourselves from expressing any view. Admittedly, the teachers have
been serving in between 8 to 13 years. lfthey continue for one month
more in pursuance of the interim order, the India Literacy Board will
not suffer any loss. F
In view of the aforesaid reasons, we direct the Registry to list the
writ petition bearing No.2917/2001 (s/s) before Hon'ble single Judge
in the next cause list.

On a mention being made by the counsel of either of the parties G
before Hon 'ble single Judge may hear and decide the writ petition
when the writ petition will be listed. In case due to the unavoidable
reason, the writ petition would not be disposed of on the date of
listing, Hon'ble the single Judge will fix another date within a fortnight
from the date of listing and decide the writ petition on merit.
H
204 SUPREME COURT REPORTS [2005] 2 S.C.R.

A With the aforesaid observations, the Special Appeal is disposed
of."

The apparent intention of the Division Bench is thu~ seen that the
matter was to be finally decided within one month and further that if the
respondents herein are permitted to continue for one month more in pursuance
B of the interim order, the appellant-Society shall not suffer any loss.
Accordingly, the appellant paid salary to the teachers in complian~e of the
order dated 10.08.200 l.

However, the case could not be decided despite the best efforts made·
by the parties. In the meanwhile, the respondents filed contempt petition
C before the High Court and the single· Judge sitting in contempt proceedings
passed the following order :

"Shri P.K. Sundriyal, Secretary, ·India Literacy Board, Literacy
House, Alambagh has stated before this· Court that salary for one
month was paid to the petitioners and they were not allowed to work
D as teachers. In the instant case, a detailed interim order was passed
by this Court on 20.7.2001 which was challenged by the opposite
parties in special appeal. The Division Bench while deciding the
special appeal also mentioned in the judgment "Admittedly, the
teachers have been.serving in between 8 to 13 years. If they continue
E for one month more in pursuance of the interim ord~r, the India
Literacy Board will not suffer any loss." Sri P.K. Sundriyal knowingly
and deliberately has disobeyed the order passed by this Court by not
allowing the petitioners to work. There was no direction by this Court
for payment of salary to the petitioners in lieu' of one month work J
and the intention of the Division Bench was that the petitioners should
F be allowed to continue in service for one month and no more. Mere
giving one month's salary will not make compliance of the order
passed by this Court. Prima facie, Sri Sundriyal is guilty for disobeying
the orders passed by this Court."

G The respondents filed an application for clarification of the order dated
I 0.08.200 I passed by the Division Bench. In the ,said application, it was
contended by the respondents that the Division Bench had directed the
appellants to allow the respondents to work and to pay their salaries but a
contingency was reflected in this direction because 9f the expectation of the
Division Bench that the writ petition may be disposed of within a fortnight.
H The respondents further contended that the purport of the said order passed
INDIA LITERACY BOARD v. VEENA CHA TURVEDI [LAKSHMANAN, J.] 205

by the Division Bench was to allow the respondents to work and pay them A
their salary till the decision of the writ petition. They alleged that the opposite
parties and the appellants have interpreted the order passed by the Division
Bench otherwise, and that they are taking undue benefit of the contingency
expressed by the Division Be.nch by taking the plea that only one month
salary was to be paid to the respondents by them and no more than that.
B
The said application was posted before another Division Bench for
hearing. The appellant filed counter affidavit in the shape of objections.to the
said application. The learned Judges of the Division Bench, by order dated
08.05.2003, while clarifying the order dated 10.08.2001 obseryed that the
respondents shall be paid salary in tenns of the order passed by the single C
Judge. Aggrieved by the order passed by the Division Bench, the above
appeal, by way of special leave petition, was filed before this Court. On
08.07.2003, upon hearing the counsel, this Court made the following Order:·

"Heard the learned counsel for the petitioners.

It has been pointed out by the learned counsel for the petitioners D
that despite the final judgment rendered by the High Court of
Allahabad holding that India Literacy Board is not a State within the
meaning of Article 12 of the Constitution (Annexure P-3), High Court
has entertained the petition and has granted interim order. It is pointed
out that even though the matter is fixed for final disposal since last E
two years, it is not heard by the High Court.

Hence, issue notice returnable within four weeks. Dasti ia addition.
Meantime, operation of the impugned judgment is stayed."

We heard Mr. Mahabir Singh, learned counsel for the appellant and F
Mrs. Shobha Dikshit, learned senior counsel for the respondents. Mr. Mahabir
Singh made the following submissions :

l. The Division Bench while clarifying the order dated 10.08.2001
failed to consider the objections filed by the appellants;

2. The appellant-Society is neither an instrumentality of the State G
nor a State within the meaning of Article 12 of the Constitution
of India and, therefore, not amenable to writ jurisdiction under
Article 226 of the Constitution of India;

3. The learned single Judge, in the instant case, by passing the
order dated 20.07.2001 has granted to the respondents the reliefs H
206 SUPREME COURT REPOR:YS [2005] 2 S.C.R.

A which could not have been granted to them even at the time of
final disposal of the writ petition;

4. The respondents were appointed as teachers on contractual basis
and their appointment was extended from time to time on
contractual basis with certain terms and conditions to which the
B respondents have agreed;

5. Since the contractual term/period was over, the appellant-Society
issued an advertisement for recruitment and that the appellant-
Society is fully competent to issue the advertisement. However,
none of the respondents though eligible to apply again for fresh
c contractual employment, have chosen to file the writ ·petition ;-,
under mis-placed apprehension that they· would not be selecteil
for fresh contract of employment;

6. The respondents have utterly failed to disclose their substantive
right to the post and failed to point out violation of any statutory
D rule and are therefore not entitled to any relief;

7. The relationship between the appellant and the respondents is
based on contract and is purely one of master and servant.

Mrs. Shobha Dikshit, learned senior counsel appearing for the
respondents/teachers in reply to the argument of learned counsel for the
E appellant submitted as follows :

1. The respondents have experience of 8-13 years of service and
that in the interest of justice, the appellant should allow the
respondents to work as teachers pending disposal of the writ i
petitio1_1.
F
2. All the respondents have rendered more than 8-"13 years of service
in the school except the artificial breaks created and during all
these periods they have been paid a con.solidated salary and by
denying the payment of salary in th_e admissible scale;

G 3. The advertisement has been issued .by the appellant in such a
manner so as to oust the respondents from the field of eligibility;

4. The interpretation order of the >Division Bench ·made by the
appellant as if they are not required to pay the salary after one
month is not correct and the appellants are duty bound to pay the
salaries to the respondents as directed by the learned Single Judge;
H
INDIA LITERACY BOARD 11. VEENA CHATURVEDI [LAKSHMANAN, J.] 207

5. The respondents who have rendered long continuous service as A
(\
assistant teachers under the appellant are aggrieved against the ·
intennittent breaks created in their services by issuing time-bound
appointment orders from time to time and by the action of the
appellant in proceeding to issue advertisement for selection against

.. 6.
the posts held by the respondents in such a manner as to
completely oust the respondents from the field of eligibility and B
also against the non-payment of salary as admissible to the
teachers;
The appellant-Society was established with an object offurthering
the cause of adult literacy and for other different laudable purposes
enshrined under the Constitution of India. The constitution and .C
composition of the appellant-Board is such as to have the
pervading control of the Government of India in collaboration
with the State Government. The funds for running and
maintaining the appellant-Board are released by the Ministry of
Human Resources and Development, Government of India and, D
therefore, the writ petition filed by the respondents in the High
Court is maintainable in law.
Concluding her arguments, learned senior counsel for the respondents
submitted that the appellant cannot legally be permitted to proceed with the
impugned action pursuant to the impugned advertisement against the posts E
held by the respondents nor can the appellant discontinue or dis-engage the
respondents from service. By issuing .periodical appointment orders under
the conditions of payment of consolidated monthly amount, the respondents
had been subjected to an unfair treatment and to exploitation of labour which
is specifically forbidden under the constitutional scheme.
F
We have carefully considered the rival submissions made by the
respective counsel appearing on the either side. We have also perused the
orders passed by the learned Single Judge and of the orders passed by the
Division Bench.

A perusal of the order passed by the High Court would clearly show G
that the High Court as an interim measure directed issue of appointment
order which was not even the main relief claimed in the writ petition. The
question is whether the reliefs which are not prayed for or which are not
claimed in the petition could have been awarded by the High Court even
before the disposal of the main case. Another question would also arise as H.
208 SUPREME COURT REPORTS [2005) 2 S.C.R.

A to whether the writ petition is maintainable against the appellant-Board which
according to the appellant is neither an instrumentality of the State nor a
State within the meaning of Article 12 ofth_e Constitution of India. A further
question would also arise as to whether the appellant is under an obligation
to-select the respondents as teachers when the contract entered into by them
B ceased on 30.06.200 l.

. Leave to appeal was sought for by the appellant on the above grounds,
among others. It has been consistently held by this Court in various cases
that in a case of contractual appointment for a fixed term, no mandamus can
-
be issued for continuing them in service but in the present case as an interim
C measure a direction has been given by the High Court to issue appointment
orders which was not even the main relief claimed in the' writ petition.

Though we have extracted several legal contentions urged by the .counsel
appearing on either side in this appeal, we refrain ourselves from expressing
any view on the merits .of the rival contentions which is premature. Any
D observation of ours in the present appeal will ultimately prejudice the case
of the parties bef9re the High Court in the pending writ petition. It is stated
by learned counsel for the appellant that one month· salary as directed by the
High Court has already been paid ~o the respondents in compliance of the
order. Though a specific direction was given by the Division Bench by its
order dated l 0.08.200 l to pay salary for one more month in pursuance of the
E interim order the said order had been wrongly interpreted by another Division'.
Bench of the High Court. The order ·passed in the special appeal by the
Division Bench also observed that the question raised by the parties in the
writ petition is an arguable one. It is an admitted case that as on today the
respondents are not working in the school. When they are not in fact working
F in the school, they are not entitled to ariy salary by applying the rule of no
work, no pay. It is not in disput~ that the Management has issued an
advertisement inviting applications from eligible candidates. The respondents
have in fact not applied for the post in question in response to the advertisement
chose to invoke the extraordinary jurisdiction of the High Court under Article
226 of the Constitution of India. In our opinion, the questions raised in the
G writ petition.is an arguable one. The affidavit.sand counter affidavits have
already been exchanged and, therefore, in the interest of justice a direction
should be issued to the High Court to hear the writ petition which is ripe for
hearing. As already stated, we have desisted ourselves from expressing any
view on the merits of the rival claims. Interest of justice would be amply met
H if a direction is issued to the learned Single Judge of the High Court with a
INDIA LITERACY BOARD v. VEENACHATURVEDI [LAKSHMANAN, J.] 209

request to take up the main writ petition itself for final hearing and dispose A
of the same on merits including the maintainability of the writ petition. We
direct the Registrar General of the High Court, Allahabad at Lucknow to
immediately place the matter before a learned Single Judge of the High Court
after obtaining appropriate orders from the Hon'ble Chief Justice for posting
the said case before the concerned single Judge for final disposal. Both the
learned counsel appearing before us have assurd tLat they will extend their B
cooperation in disposing of the writ petition finally.

We request the learned single Judge before whom the writ petition is
posted to take up this matter on priority basis and. dispose of the same in
accordance with law within one month from the date of posting of the said C
case in his Court.

The civil appeal is disposed of accordingly. No costs.

D.G. Appeal disposed of.