Full Judgment Text
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PETITIONER:
REGINA
Vs.
RESPONDENT:
ST. ALOYSIUS HIGHER ELEMENTARY SCHOOL & ANR.
DATE OF JUDGMENT16/03/1971
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
VAIDYIALINGAM, C.A.
CITATION:
1971 AIR 1920 1971 SCR 6
1972 SCC (4) 188
ACT:
Madras Elementary Education Act (8 of 1920), s. 56(2) (h)
and Part II, Rules--If statutory Rules or administrative
instructions--Purpose of Rules--Right of teacher against
management of Elementary School--If governed by contract or
Rules.
HEADNOTE:
The appellant, who was working as the Headmistress in the
respondent school was reduced to the position of an
Assistant Teacher. Her appeal to the District Educational
Officer under. 13(2)(vi) of Part 11 of the rules published
by the State Government in the Gazette on August 29 1939,
was rejected, but on a further appeal by her to the
Divisional Inspector of Schools, the management of the
school was directed to restore her to the position of
Headmistress. As the management did not do so, she filed a
suit for the issue of a mandatory injunction to the
respondent and for damages.
On the question whether the rules under which the appeal was
filed and the order was made were only administrative
instructions by the Government to its educational officers
and not statutory rules which would give rise to a remedy
enforceable at law at the instance of an employee of a
school aggrieved against the management,
HELD: (1) Section 56 of the Madras Elementary Education
Act, 1920, authorized the Government to make rules to ’carry
out all or any of the purposes of this Act’, and under sub-
s. 2(h) for declaring the conditions subject to which
schools may be admitted to recognition or aid, and rules
were framed in 1922. The Act was amended by Amendment Act
of 1939, by which Chs. 11, IV, VI and s. 55 were deleted.
The existing rules therefore could not be continued as they
could not be regarded as rules for ’carrying out the
purposes of the Act.’ Hence they were reframed and published
in the Gazette in 1939 in two parts. [13F, H; 14D].
(a) The first part contained rules dealing with matters
provided for in the various sections. The rules in Part II
could not refer to any section because, they related to
matters such as recognition and aid dealt with in sections
and Chapters which were repealed by the 1939-amendment, and
hence, Part II rules did not set out or refer to any section
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of the Act. [14E].
(b) The rules in Part I were headed ’Rules framed under the
Madras Elementary Education Act, 1920’, but the Rules in
Part 11 were not given any such heading or title. [14F].
(c) There was no previous publication of the rules in Part
11 as required by s. 56(1). [14F-G].
(d) The rules in Part 11 could not be claimed to have been
made under s. 56(2) (h) dealing with the conditions subject
to which schools may be admitted to recognition or aid,
because they did not satisfy the condition precedent for
such rule-making, namely, that they could be made only ’to
carry out all or any of the purposes of the Act’, [16D-F].
7
Therefore, the rules in Part 11 could not be said to be
statutory rules framed under s. 56. [16F]
(2) But the Government had the power de hors the Act to lay
down conditions under which it could recognise and grant
aid. To achieve uniformity and certainty in the exercise of
such executive power and to avoid discrimination, Government
could frame rules which would however only be administrative
instructions to its officers. [17B-D]
The rules in the present case, relating to recognition and
aid, thus governed the terms on which Government would grant
recognition and aid and Government could enforce the rules
on the management by the denial or withdrawal of such
recognition or aid, if there was a breach or noncompliance
of the conditions laid down in the rules. But the
enforcement of such rules was a matter between the
Government and the management, and a third party, such as a
teacher aggrieved by same order of the management, could not
derive from the rules any enforceable right against the
management on the grounds of a breach of or non-compliance
with any of the rules. [17D-E; 19B-C]
(3) The relation between the management of the elementary
school and the teachers employed in it would be governed by
the terms of the contract of employment and the law of
master and servant in the absence of any statute or
statutory rules controlling or abrogating such a contract
and providing to the contrary. [16F-G]
The result is that the relations between the managements and
the teachers even in a recognised elementary school have to
be regarded as being governed by the contracts of employment
and the terms and conditions contained therein. Part II
Rules, which cannot be regarded ,is having the status of
statutory rules made under s. 56 cannot be said to have the
effect of controlling the relations between the management
of a school and its teachers. [16H; 17A-B]
Therefore, the appellant could not be said to have had a
cause of action for enforcing the directions given by the
Divisional Inspector to restore her as the Headmistress in
the appeal filed by her. Appeals against orders passed by
the management against a teacher are provided for under r.
13 so as to enforce the satisfaction of conditions under
which recognition and aid would be granted or withdrawn, and
not for regulating as between the teacher and the
management, the relations of master and servant arising
under the contract of employment. [18B-C]
Chandrasekharan Nair v. Secretary to Government of Kerala,
A.I.R. 1965 Ker. 303, A. Ramaswami Ayyangar v. State of
Madras, (1962) 1 M.L.J. 269, and Moss. v. The Management,
(1970) 2 A.W.R. 157, approved.
Govindaswami v. Andhra, (1962) (1) An. W. R. 283, overruled
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 500 of 1966.
Appeal by special leave from the judgment and order dated
July 27, 1965 of the Mysore High Court in Second Appeal No.
235 of 1960.
B. R. L. Iyengar and E. C. Agrawala, for the appellant.
R. Gopalakrishnan, for the respondent.
8
The Judgment of the Court calling for a report was delivered
by
Shah, J. The appellant was appointed on April 10, 1949,
HeadMistress of St. Aloysius Higher Elementary School, Urva
then in State of Madras. On June 1, 1955, the Manager of
the School reduced her to the post of an Assistant Teacher.
Her appeal to the District Educational Officer, South
Kanara, against the action of the Manager was rejected. In
second appeal, the Divisional Inspector of Schools,
Coimbatore, by order dated July 5, 1956, allowed the appeal
and directed the District Educational Officer to issue
instructions to the Management of the School to reinstate
the appellant as Head Mistress. But no effect was given to
that order by the Management.
On June 26, 1957, the appellant filed the suit out of
which this appeal arises claiming a, mandatory injunction
directing the Management of the School to reinstate her to
the post of Head Mistress and damages for loss resulting
from the wrongful action of the Management.
It was the appellant’s case that the school was receiving
grantin-aid from the Government of Madras and was subject to
the supervision and control of the Education Department of
the Government of Madras, and since the reorganization of
the States, of the Mysore Government of the affairs of the
school, said the appellant, were conducted according to the
rules and regulations framed by the Government and embodied
in the rules relating to the elementary schools framed under
the Madras Elementary Education Act, 1920, and on that
account the order passed by the Manager removing her from
the post of Head Mistress stood vacated, and refusal of the
Manager to reinstate her was illegal, because the Manager
was bound by rr. 13 & 14 framed under the Madras Elementary
Education Act to obey the order passed by the Divisional
Inspector of Schools on an appeal preferred by her.
The suit was resisted by the Management. They contended
that they were not bound by the Madras Elementary Education
Act or the rules framed thereunder; that the Manager alone
was responsible for the "efficiency, strength and progress"
of the school and for the internal discipline, which were
all matters left to his discretion and the Management could
not be compelled to reinstate the appellant as Head Mistress
when she did not command their confidence.
The Trial Court held that the appellant was not entitled to
claim reinstatement as Head Mistress, because the action of
the Management removing the appellant’s from the post of
Head Mistress was not illegal. The Trial Court also held
that the orders
9
passed by the Educational authorities were not binding on
the Manager and the action taken by the Manager "though
severe", could not be declared illegal.
In appeal the District Court reserved the Judgment passed by
the Trial Court and decreed the appellant’s suit and issued
a mandatory injunction directing the Management of the
School to reinstate the appellant as Head Mistress of the
School. Against that decree a Second Appeal was preferred
to the High Court of Mysore. The High Court reversed the
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decree passed by the District Court and ordered that the
appellant’s suit do stand dismissed. Against that order
this appeal is preferred with special leave.
The principal question which fell to be determined before
the High Court was whether the rules framed under the Madras
Elementary Education Act, 1920, which conferred authority
upon the educational authorities of the State, were
statutory and enforceable at the instance of a person
prejudicially affected by breach thereof. The Madras
Elementary Education Act 8 of 1920 which originally
contained 56 sections has been amended from time to time by
Madras Acts 2 of 1932, 2 of 1934, 11 of 1935, 13 of 1938, 2
of 1939, 15 of 1951, 28 of 1943, 8 of 1946 and 23 of 1950.
As a result of these amending Acts a large number of the
provisions of the Madras Elementary Education Act, 1920,
have been modified or repealed. Section 41 which provided
for the recognition of elementary schools and S. 42 which
provided for admission of elementary schools to grant-in-
aid, stood repealed by Act 2 of 1939. By s. 56 the State
Government was authorized to make rules not inconsistent
with the Act to carry out all or any of the purposes of the
Act, and by sub-s. (2) of s. 56 it was provided :
"In particular and without prejudice to the generality of
the foregoing provisions they may make rules-
(f) laying down the registers, statements,
reports, returns, budgets and other
information to be maintained or furnished by
local authorities, by panchayats, and by
managers of elementary schools under private
management and the time within which any
statement, report, return, budget or other
information shall be furnished;
(h) declaring the conditions subject to
which schools may be admitted to recognition
or aid."
10
Rules were framed under the Act for the first time by the
Govt. of Madras in 1922. These rules provided for the grant
of recognition and aid to elementary schools, and for
prescribing conditions of service and qualifications of
teachers and the authority of the District Educational
Inspector and higher authorities. The provisions relating
to the recognition of the elementary schools and admission
of primary elementary schools to grantsin-aid were, as
stated earlier, repealed by Act 2 of 1939, but the power to
frame rules, especially for the purpose of declaring the
conditions subject to which schools may be admitted to
recognition or aid, was retained.
It also appears that even after Act 2 of 1939 which repealed
Ch. IV was enacted, rules relating to the power of the
Educational authorities were republished on August 29, 1949,
and Part II of the Rules dealt with matters relating to
recognition of schools and grant-in-aid. In the view of the
High Court, after repeal of ss. 41 & 42 of the Act, those
rules could only have effect as executive instructions. On
this question it appears that there has been some difference
of opinion in the High Courts. A Full Bench of the Kerala
High Court in Chandrasekharan Nair and others v. Secretary
to Govt. of Kerala and others,(1) approving their earlier
judgment in Joseph Valamangalam v. State of Kerala(1) held
that the rules contained in Part II headed "Rules for grant
of recognition and aid to Elementary Schools" framed under
the Madras Elementary Education Act, 1920, were mere
executive directions having no statutory authority.
The High Court of Andhra Pradesh in Jalli Venkatswamy V. The
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Correspondent, Kasturiba Gandhi Basic Senior School
kenetipuram(3) was apparently of the view that these rules
had statutory operation.
The High Court of Madras in A. Ramaswami Ayyangar v. State
of Madras (Education Department)(1) held that the rules were
administrative and not statutory in their effect, and the
management could dispense with the services of its employee
(a teacher) after giving three months’ notice in the usual
course, without assigning any special reason, and the
employee could not invoke the aid of the Court for an order
to quash the proceedings of the management dispensing with
his services on the ground of non-compliance with those
rules.
(1) A. I. R. 1961 Kerala 303.
(3) A. I. R. 1961 A. P. 178.
(2) A. I. R. 1958 Kerala 290.
(4) A. I. R. 1962 Mad. 387.
11
In this case, the question whether an. order made by the
Educational authorities in exercise of the powers conferred
upon them by rules is liable to be enforced by action in a
civil court at the instance of s person affected by the
action of the school authorities falls to be determined. It
is unfortunate that counsel have not been able to place
before us the Act, and the rules in force at the material
time. Counsel appearing at the Bar are also unable to
inform us about the authority in the exercise of which the
rules were originally framed and were reissued after the
repeal of Ch. IV of the Act. Before we can decide this
appeal, we must have before us a copy of the relevant rules
in force at the material time, and evidence about the
authority under which the rules were framed and continued,
the sanction behind the enforcement of the rules, if any,
and the manner in which the rules were being administered by
the Madras Government and thereafter by the State of Mysore
when the District of South Kanara merged with that State
under the States Reorganization Act, 1956.
We direct that the papers be sent down to the Trial Court
and that the Trial Court do report to us after taking
evidence on the questions set out earlier. The Trial Court
may, if so advised, issue a summons to the Educational
authorities of the State of Madras or take other steps to
ensure production of the documents bearing on the questions
on which report is directed to be made. Enquiry may
especially directed to the question whether the State of
Madras, or the state of Mysore, have on any earlier occasion
enforced the orders passed by the Educational authorities in
appeals and the power in exercise of which they have been
enforced. The Trial Court to submit the report within six
months from the date on which the papers reach that Court.
The judgment of the Court after receipt of the report was
delivered by
Shelat, J.- Prior to June 1, 1955, the appellant was working
as the Head Mistress in the respondent school. On April 22,
1955, the management of the School served certain charges on
her and called upon her to reply to the same. Her reply was
found to be unsatisfactory, and thereupon, by an order
passed by the management on June 1, 1955 she was reduced to
the position of an Assistant Teacher. She thereafter filed
an appeal against the management before the District
Educational Officer, South Kanara. Her appeal was rejected.
A further appeal by her before the Divisional Inspector of
Schools, Coimbatore, succeeded and the Divisional Inspector
directed the management to restore her to her original
position as the Head Mistress. The management declined to
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do so and she filed the suit from which this appeal arises.
12
The suit was on the basis: that since the school had
obtained recognition and grant-in-aid under the Madras
Elementary Education Act, VIII of 1920, and the rules made
therefore by the Government, it was under the
supervision,first of the Education Department of the Madras
Government,and. after reorganization of States, that of the
Mysore Government. According to her, the Act and the said
rules were binding on the school and gave her a right to
enforce against the management the said order of the
Divisional Inspector. The order reducing, her to the
position of an assistant teacher stood vacated by the order
of-the Divisional Inspector and the respondent school,
therefore, was bound to comply with that order and restore
her to the position of the Head Mistress, The management
contested the suit, maintaining that the order of reduction
passed by it was within its power, that there was nothing in
the Act or the rules which warranted any interference with
its right of internal management of the school and gave no
right to the appellant to enforce in, a court of law the
order passed by the Divisional Inspector, that order being
only a matter between the Education Department and the
management.
The Trial Court accepted the school’s contention and dismis-
sed the suit. In an appeal against that dismissal, the
District Judge took a different view and held that the order
of the Department was legally enforceable by the appellant
since it was passed in an appeal provided by the said rules.
He set aside the dismissal of the suit and passed a decree
in favour of the appellant. On a second appeal by the
school, the High Court went into the legislative history of
the Act and on an examination of the rules accepted the
contention of the management that the relations-hip between
the parties was that of master and servant and no mandatory
injunction could be issued directing restoration of the
appellant as the Head Mistress as that would be tantamount
to specific performance of a contract of personal service
not permissible under s. 21(b) of Specific Relief Act, 1877.
The High Court also held that the rules, under which the
appellant had filed the said appeal and the said order was
made, were only administrative instructions by the
Government to its educational officers and not statutory
rules which would give rise to a remedy enforceable at law
at the instance of an employee of a school aggrieved against
its management. Against this judgment, the appellant
obtained special leave from this Court and filed this
appeal.
The appeal first came up for hearing in March 1970 before
Shah, J. (as he then was) and Grover, J. Not satisfied with
the record before them, the learned Judges postponed the
hearing of the appeal and called for a report from the Trial
Court on certain matters found wanting in the record, In
accordance with that order, the Trial Court took additional
evidence, both oral and
13
documentary, and dispatched its. report along with a copy of
the rules, the Madras Gazette in which they were published
and certain other materials. From; those materials as also
from the judgment of the Kerala High Court reported in Rev.
Fr. Joseph v. Kerala(1) it is possible to, trace the
charges which the Act and the rules have undergone from time
to time. Such a legislative, history of the Act is
important to a certain extent as it throws light on the
character of the rules and the power under which they were
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framed from time to time.
Counsel for the appellant urged that in spite of the changes
made from time to time in the Act, the rules with which we
are concerned in this appeal have retained their original
character of being statutory rules., They must, therefore,
be, held to have been made under s. 56 and particularly
under cl. (h) of its sub-s. (2), which empowers the
Government to make rules in respect. of recognition as an
elementary school and the aid which the Government gives to
it from public funds. The argument was that despite the
changes in the Act, particularly the deletion of certain
provisions of the Act, to which we shall presently come, the
definition of an ’elementary school’ in the Act takes in
schools recognised by the Director of Public Instruction of
the State Government, and since such a recognised school is
the essence of the scheme of elementary education provided
by the Act, the rules have to- be treated as statutory rules
made,under, cl. (h) of s. 56(2) which is still retained in
the Act.
Before we proceed to. consider these contentions it is
necessary to examine briefly the Act and its legislative
history.
The Act was, first passed as Madras Act, VIII of 1920, and
then contained seven chapters with 56 sections. It
underwent several changes. from, time to time, and
particularly when the Madras Elementary Education (Amendment
Act. II of 1939 was passed by which Chapter II, IV, VI and
s. 55 in Ch. VII. were deleted.
The Act was passed with the object of making better
provisions for elementary education and envisaged imparting
of such education through elementary schools, including
those run by private managements, but recognised by the
Government through its Education Department. Sec. 3(vi) of
the Act defines such an elementary school as one recognised
by the Director of Public Instruction or by such authority
as may be empowered by him in that behalf. sec. 56
authorized the Government to make rules not inconsistent
with the provisions of the Act "to carry out all or any of
the purposes
(1) A. I. R. 1958 Kerala 290.
14
of this Act", and in particular cl. (h) of sub-s. (2) for
"declaring the conditions subject to which schools may be
admitted to recognition or aid." Ch. II, before its
deletion in 1939, provided for the constitution of District
Educational Councils, their duties, their funds, budget and
audit. Ch. VI, by ss. 41 to 43 in it, dealt with
recognition of schools and admission of private managed
schools to grant-in-aid. These chapters, as stated earlier,
were repealed in 1939.
The Rules were first framed in 1922 under S. 56 and
contained provisions regarding recognition and aid. These
Rules were clearly statutory rules. Curiously, although
Chs. 11 and IV were deleted in 1939, cl. (h) of s. 56(2) was
allowed to remain in the Act. It appears that the rules
regulating recognition and aid were framed in 1922 because
so long as Chs. 11 and IV were in the Statute, they had to
be made to implement the purposes set out in those chapters.
But with the repeal of those chapters, those Rules could not
be continued as they could no longer be regarded as rules
for carrying out the purposes of the Act as S. 56(1) enjoins
The Madras Government appears to have appreciated such a re-
sult arising from the repeal of those chapters and
therefore, reframed the rules and published them in the
Gazette of August 29, 1930. The new Rules were divided into
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two parts. The first part contained rules dealing with
matters provided for in ss. 3(i)(v) and (viii), S. 36(1) and
(2), S. 44, S. 48, S. 50(iii) and (v) and S. 51. Part II
Rules did not set out or refer to any of the sections in the
Act as Part I Rules did. The reason was that rules in Part
11 dealt with recognition and aid in respect of which there
were, after the 1939 amendment, no corresponding provisions
in the Act. It is also of some significance that when
published in 1939 the rules in Part I were headed "Rules
framed under the Madras Elementary Education Act, 1920",
while the rules contained separately in Part II were not
given any such heading or title. Further, it appears that
when these Part II Rules were published in August 1939 there
was no previous publication of them as required by S. 56(1)
of the Act.
Ch. I in Part II Rules deals with recognition. The power to
grant or withdraw such a recognition is conferred on the
officers of the Education Department. Under r. 5,
applications for recognition of schools or additional
standards in such schools are to be made to the District
Educational Officer. An appeal is provided against his
decision before the Divisional Officer. The rules then lay
down certain requirements on the basis of which recognition
would be given or withheld. Rule 13(1) provides, inter
alia, for the maintenance of a teacher’s service register by
the manager of the school specifying therein the terms of
service under which a teacher is recruited. The register
would include
15
particulars showing whether a teacher is appointed
temporarily or on probation or on a permanent basis, his
salary, the scale of pay, if any, etc. Under the rule, the
manager has to get the register countersigned by the Deputy
Inspector of Schools. The rule further provides that no
qualified teacher can be appointed on ;a temporary basis or
for a stipulated period. All appointments to permanent
posts have initially to be made on probation and on expire
of the probation period the teacher would be deemed to be
permanent. Cl. (2) of r. 13 provides that no teacher can
leave the service of a school without giving three months’
notice, or three months’ salary in lieu thereof. Under sub-
cl. (ii) of cl. (2) of that rule, the management has the
power to terminate the service of any member of the staff,
whether permanent, temporary or probationary, without any
notice on the grounds set out therein. But, three months’
notice would be required if the termination of service is
for reasons other than those set out in sub-cl. (ii), e.g.,
for wailful neglect of duty, serious misconduct, gross
insubordination, incompetence etc. The first provision to
sub-cl. (ii) requires, however, that before such notice of
termination is given the teacher has to be informed in
writing of the charges against him and a reasonable
opportunity to be heard has to be given to him. The second
proviso to that subclause requires the management to consult
the Deputy Inspector and obtain his approval about the
propriety of the action proposed against a teacher. The
rule then provides :
"When, on a teacher’s appeal, the District
Educational Officer orders reinstatement, the
management shall forthwith reinstate him
within 10 days of the receipt of the orders,
notwithstanding a further appeal submitted or
proposed to be submitted by the management to
the Divisional Inspector and shall inform in
writing the Deputy Inspector of Schools and
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the District Educational Officer of the fact
of having done so. Failure to comply with
such orders of the District Educational
Officer may entail action against the
management under rule 14 below."
Sub-cl. (vi) of r. 13(2) provides for appeals, first, before
the District Educational Officer, and then, before the
Divisional Inspector of Schools. Under r. 14, the Director
of Public Instructions has the power to declare, after
enquiry, a teacher to be unfit for employment in a
recognised school. Under r.. 14-A, he can refuse or
withdraw recognition from a school in which is employed a
teacher whom he has declared to be unfit, or when the school
is under the management of a person declared unfit by him.
Recognition can also’ be withdrawn under rr. 26 to 28, 28-A
and 28-B on the grounds set out therein. Ch. 11 of Part II
Rules contain rules in regard to aid, such as teaching
grants, maintenance grant etc.,
16
and Ch. III contains rules with regard, to grants for
school buildings, building sites and play-grounds.
Chs. II and IV of the Act, which contained provisions for
recognition and aid, having been repealed, these rules,
reissued and published afresh in August 1939, cannot be said
to be rules "to,, carry out all or any of the purposes of
this Act", as provided by S. 56(1). No doubt, cl. (h) of
sub-S. (2) of S. 56 was still retained even after Chs. 11
and IV were deleted, and therefore, the Government could
perhaps claim to have the power to frame statutory rules
"declaring the conditions subject to which schools may be
admitted to recognition or aid". But even if the Government
were to claim to have framed rules under the sanction
contained in cl. (h) of S. 56(2), such rules would not
satisfy the condition precedent for such rule-making,
namely, that they can be made only "to carry out all or any
of the purposes of this Act"., Such rules, therefore, even
if made, would not be rules made under S. 56. Besides, the
fact is that when Part 11 Rules were published in the
gazette of August 28, 1939, they were not claimed to have
been made under the power reserved to the Government under
S. 56. If they were claimed to have been so made, they
would, firstly, have been pre-published as required by S.
56(1), and secondly, the Government would not have made the
distinction between Part I and Part II Rules, which it did,
by giving a title to the former, namely, that they were made
under the Act, and omitting to give such a title to the
latter. These facts support the contention of the
respondent-school that Part 11 Rules cannot be said to be
statutory rules framed under S. 56, although the power to
make such rules is still retained with the Government by
reason of cl. (h) being still there in S. 56(2).
Ordinarily, the relations between the management of an ele-
mentary school and the teachers employed in it would be
governed by the terms of the contract of employment and the
law of master and servant in the absence of any statute
controlling or abrogating such a contract of employment and
providing to the contrary. The mere fact that such a school
has obtained recognition and aid from the education
department would not mean that the relationship between its
management and its employees has ceased to be governed by
the contracts of employment under which the employees are
recruited and by the law of master and servant unless there
is some provision in the Act overriding that law as one
finds in statutes dealing with industrial disputes and
similar other matters. There is in fact no such provision
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in the Act and none was pointed out to us. The result is
that the relations between the management and the teachers
even in a recognised elementary school have to be regarded
as being governed by the contracts of employment
17
and the terms and conditions contained therein. Part II
Rules, which cannot be regarded as having the status of
statutory rules made under S. 56, cannot be said to have the
effect of controlling the relations between the management
of a school and its teachers or the terms and conditions of
employment of such teachers or abrogating the law of master
and servant which ordinarily would govern those relations.
But it cannot also be gainsaid that as the Government has
the power, to admit schools to recognition and grants-in-
aid, it can, de hors the Act, lay down conditions under
which it would grant recognition and aid. To achieve
uniformity and certainty in the exercise of such executive
power and to avoid discrimination, the Government would have
to frame rules which, however, would be in the form of
administrative instructions to its officers dealing with the
matters of recognition and aid. If such rules were to lay
down conditions, the Government can insist that satisfaction
of such conditions would be condition precedent to obtaining
recognition and aid and that a breach or non-compliance of
such conditions would entail either the denial or withdrawal
of recognition and aid. The management of school,
therefore, would commit a breach or non-compliance of the
conditions laid down in the rules on pain of deprivation of
recognition and aid. The rules thus govern the terms on
which the Government would grant recognition and aid and the
Government can enforce those rules upon the management. But
the enforcement of such rules is a matter between the
Government and the management, and a third party, such as a,
teacher aggrieved by some order of the management, cannot
derive from the rules any enforceable right against the
management oh the ground of a breach or noncompliance of any
of the rules. To illustrate the point, suppose the
management of a school were to terminate the service of a
teacher after giving one month’s notice, or one month’s
salary in lieu thereof in ’accordance with the contract of
employment between the feather and the management, such a
termination would be valid. But the ’Government can insist
that since its rules provide for three months’ ’notice, the
management cannot terminate the service of a teacher by
giving only one month’s notice. Though in the absence of
’statutory provision having the effect of controlling or
superseding the contract of employment agreed to between the
parties, the termination would in law be valid,
nevertheless, the Government can withdraw, under Part II
Rules, the recognition and aid it has given to the school
since its rules governing recognition and aid were riot
complied with. But that does not mean that Part II Rules
confer upon a third party, viz., an aggrieved employee of a
school, any remedy enforceable at law in the event of the
management of an elementary school refusing to comply with
these
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rules which, inter alia, enjoin upon a school to abide by
the directions given thereunder by the education officers of
the Government named therein.
in the absence of any provision in the Act governing the
relations between the management and a teacher employed by
it or controlling the terms of employment of such a teacher
and Part II Rules not being statutory rules, the appellant
could not be said to have had a cause of action for
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enforcing the directions given by the Divisional Inspector
to restore her as the Head Mistress in the appeal filed by
her. Appeals against orders passed by the management
against a teacher are provided for under r. 19 so as to
enforce the satisfaction of conditions under which
recognition and aid would be granted or withdrawn, and not
for regulating, as between the teacher and the management,
the relations of master .and servant arising under the
contract of employment.
In Rev. Fr. Joseph v. Kerala,(1) the Kerala High Court had
to consider the question of these rules being statutory or
not as one of, the schools, whose writ petition among others
it was trying, was governed by the Madras Elementary
Education Act, 1920 and the rules made, by the Madras
Government. After tracing legislative,, history of the Act,
as also of the rules, the High Court held that Part II Rules
did not have any statutory origin and were, therefore, only
administrative instructions by the Government to its
educational officers, and therefore, did not vest in the
school any, statutory right for grant-in-aid. This decision
was later approved by a full-bench of that High Court in
Chandrasekharan Nair v. Secretary to Government of Kerala(2)
where that Court once again held that Part II Rules were
administrative rules. Similarly, in A. Ramaswami Ayyangar
V. Madras,(3) the High Court of Madras negatived the
contention that these rules, dealing with recognition and
aid, could be invoked by an, employee against the management
of a private elementary school to enforce a right allegedly
arising under the rules. The High Court held that the rules
were, not statutory , rules, and that therefore. they could
not enlarge the scope of the contract of employment between
such an employee of, the school and the management embodied
in the school register, and that the rules affected the
relations between the school and the Government, and not a
third party. In Govindaswami v. Andhra,(1) a learned Single
Judge of the Andhra High Court, took the view that the
powers and functions of the State’s educational officers
under these rules in relation to recognition a ad aid were
quasi judicial and held that these rules were Statutory
(1) A. 1. R. 1958 Kerala 290.
(3) 1962(1) M. L. J. 269.
(2) A. I. R. 1961 Kerala 303.
(4) 1962(1) An. W. R. 263.
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rules. But this view was on an assumption that even Part II
Rules were made under S. 56(2)(h) of the Act. Such an
assumption was made without any enquiry whether they were so
made and without taking into account the fact of the
deletion of Chs. II and IV from the Act in 1939, and its
impact on the rule-making power of the Government, the re-
issuance of the rules thereafter and the distinction made by
the Madras Government itself between Part I and Part 11
Rules in the headings which it gave to those two parts. The
more recent view of the Andhra High Court, however, is
reflected in Moss v. The Management(1) where a Division
Bench of that High Court has held that Part 11 Rules
relating to recognition and aid are not statutory rules but
are only executive instructions, and therefore, are not
legally enforceable in a court of law.
On the reasons aforesaid, the suit filed by the appellant
must be held to be misconceived, and consequently, the High
Court righty dismissed her suit. The appeal fails and is
dismissed. But in the circumstances of the case, we decline
to make any order as to costs.
V. P. S. Appeal dismissed.
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(1) 1970(II) An. W. R. 157.
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