R.A. Jahagirdar, J.
1. The appellant before us had preferred a writ petition, being Special Civil Application No. 144 of 1981 in the Court of the Judicial Commissioner. The learned Judicial Commissioner, by his judgment and order dated 16th October, 1981, dismissed the writ petition holding that the petition was not maintainable, because the rules and provisions of the Grant-in-aid Code (hereinafter referred to as the Code) did not create any right in the petitioner. Since the petitioner was apparently trying to enforce the right arising out of the Code, the petition could not be admitted because no relief could be given in the said petition. Aggrieved by the aforesaid order of the learned Judicial Commissioner, the petitioner has preferred this Letters Patent Appeal.
2. Before proceeding to consider the contentions raised on behalf of the appellant, who was the Head Master of a school conducted by the 5th respondent in this appeal, it would be appropriate to recapitulate all the relevant facts. The appellant has been appointed in the school as Head Master on probation on 14th November, 1969. Before he completed two years in that position, his services were terminated by an order dated 15th September, 1971. This order of termination of his services was challenged by the appellant in accordance with the procedure prescribed under the Code.
3. At this stage itself we would briefly refer to the relevant provision of the Code. Rule 65 of the Code mentions that in the case of a permanent vacancy, a teacher should ordinarily be appointed on probation for some definite period, exceeding two years, after which he will be made permanent, provided he is trained and his work is found satisfactory. In this Rule, viz. Rule 65, nothing is mentioned about the termination of services of teachers appointed under the said Rule. However, by an order dated 27th March, 1972 the Director of Education of Government of Goa, Daman & Diu informed all the persons concerned that the services of teachers on probation in Non-Government Secondary School should be terminated by the management unless the case is first referred to a Committee consisting of representative of the management, representative of the Teacher's Association and representative of the Department of Education. The last mentioned representative was to be nominated by the Director of Education himself. The said order also mentioned that final decision was to be taken by the Management only after obtaining the views of the above mentioned committee. Though this order is dated 27th March, 1972, the direction containing this order was to apply to cases wherein termination order had been issued by management after 25th March, 1971. Wherein services has been terminated before the coming into force of this order, it was directed that the teacher concerned should be taken back by the management and thereafter the procedure laid down in the said order should be followed. In one sense, this order was engrafted into Rule 65.
4. The procedure prescribed in this order was followed in the case of the appellant and the tripartite Committee did not endorse the management's decision to terminate the services of the appellant. By letter dated 29th July, 1972 the Governer of the Committee informed the president of the 5th respondent that the termination was not in conformity with Rule 65(iii) of the Code and requested the President that the appellant be reinstated. By letter dated 25th September 1972 the Deputy Director of Education informed the 5th respondent that the Directorate of Education upholds the view expressed by the Committee that the termination of the service of the appellant was not done in accordance with Rule 65(iii) of the Code. The Deputy Director of Education, therefore, requested the President of the 5th respondent to reinstate the appellant.
5. Thereafter, the appellant has sent several letters to the Director of Education requesting the latter to take steps to get himself reinstated in the service of the 5th respondent. The Director of Education has apparently not taken any action to get the appellant reinstated pursuant to what can be regarded as a direction contained in the letter of 25th September, 1972.
6. From the material which has been placed before us, it can be seen that the 5th respondent-Society wrote a letter, dated 18th June, 1974 to the Director of Education. In reply to the said letter the Educational Inspector sent a letter dated 21st June, 1974 to the 5th respondent-Society. In this letter the Educational Inspector informed the 5th respondent-Society that the letter's proposal to terminate the service of the appellant, by considering him permanent from 14th November, 1971 and paying him compensation of six months' salary was approved. If the letter has stopped at this stage, probably some lengthy arguments advanced at the bar would have been avoided. However, the letter proceeded to mention that the 5th respondent-Society may pay to appellant salary from 1st November 1971 to 14th November, 1971 and thereafter for six months period as laid down in Rule 74(iii) of the Code. The 5th respondent-Society was at liberty to terminate the services of appellant in accordance with the said Rule. It is this order that has driven the appellant to this Court originally under Article 226 of the Constitution and the petition having been dismissed in limine, the appellant has preferred this Letters Patent Appeal.
7. It may be stated that before Special Civil Application No. 144 of 1981 was filed, the appellant had filed another writ petition, being Special Civil Application No. 61 of 1974 which was allowed to be withdrawn on 29th July, 1981. Thereafter he preferred Special Civil Application No. 144 of 1981. We may add that the learned Single Judge did not dismiss the latter petition on the ground that the petitioner was guilty of laches. The learned Single Judge held that the reliefs claimed in the petition, apparently based upon a right under the provisions of the Code, could not be granted in exercise of the writ jurisdiction of the then Judicial Commissioner and, therefore, the petition was not maintainable.
8. Mr. Rebello, the learned Advocate appearing in support of the appellant has sought to contend that the learned Single Judge was in error in holding that the reliefs which the appellant had claimed in his writ petition could not be granted. According to Mr. Rebello, the view of the learned Single Judge that the reliefs could not be granted is inconsistent with the view taken by a Divisional Bench of this Court in Kamla Prasad Shukla v. S.N. Ingole and others, 1983 Mh.L.J. 348. In order to understand the contention of Mr.Rebello in this regard and also the contentions in support another prayer which had been made in the original writ petition, it would be worth while to refer to the prayer clause in the original writ petition. It has been prayed that the order dated 21st June 1974 should be quashed and set aside by an appropriate writ of this Court. Secondly, it was prayed that a writ of Mandamus should be issued by this Court directing the Director of Education to withdraw order dated 21st June, 1974 and to take steps for enforcing the order of the Deputy Director of Education as well as the decisions of the Committee set up and statutorily formed for reinstatement of the petitioner as Head Master in the school of respondent No. 5 and for payment of petitioner's salaries, allowances and all the consequential benefits from the date of termination until the date of reinstatement in service.
9. We must separate the two prayers which have been some what mixed up in prayer (b) of the original petition. For the sake of convenience we will say that the first prayer of the appellant in the writ petition was that the Director of Education should be compelled by an appropriate writ from the Court to take steps for enforcing the earlier order of the Deputy Director of Education whereby 5th respondent had been directed requested, to quote the actual word) to reinstate the appellant in his original position. The second prayer was that the order dated 21st June, 1974 granting permission to 5th respondent to terminate the services of appellant with effect from 15th November, 1974 should be quashed, the same being illegal and contrary to the provisions of the Code.
10. We will first consider whether the first part of the prayer could have been granted, the learned Judicial Commissioner exercising the powers under Article 226 of the Constitution or can be granted by this Court under Article 226 of the Constitution. Mr. Rebello has placed reliance upon, as already mentioned above the judgment of this Court in Kamla Prasad Shukla's case. In this case the Division Bench found facts that the Inquiry Committee, which had inquired into the conduct of the teacher, consisted of, among others, the Head Master of the school himself who was in the character of a complainant. One of the complaints which were to be investigated by the Committee related to the charge that the teacher had made allegations amounting to character assassination of the Head Master. The Division Bench found that despite the rule for the Head Master sitting in committee to inquire into the conduct of a teacher, where the Head Master himself is in the character of a complainant or where the Head Master is to give evidence, he should not properly sit on the committee which was to inquire into the conduct of the teacher. The Director of Education in that case had refused to set aside the order of dismissal, which had been upheld by the Director of Education was vitiated by violation of fundamental rule of natural justice and, therefore, was liable to be quashed. Proceeding further, the Division Bench directed what the Director of Education himself could have directed that the teacher should be reinstated. We may at this stage mention that the learned Single Judge, before whom the writ petition had been filed had dismissed the writ petition in Kamla Prasad Shukla's case and it went to appeal before the Division Bench which passed the order in the following terms:
'The judgment and order of the learned Single Judge and the impugned order dated 14th February, 1979 passed by the Joint Director of Education are set aside, resulting in the revalidation of the Deputy Director's order and the consequence flowing therefrom which it is the duty of the management to implement.'
11. From what has been mentioned above it is clear to us that the Division Bench did not hold that the writ should be issued by the High Court under Article 226 of the Constitution directing either the Director of Education to secure the implementation of the order of the Deputy Director of Education or the school management itself to reinstate the concerned teacher. In our opinion, this could not have also been done because of the well settled position in law that the provisions of the Grant-in-aid Code do not confer any right upon a teacher which he can enforce either by a suit or by a petition under Article 226 of the Constitution.
12. A long line of directions is there on this subject and we may only refer to the judgment of the Full Bench of this Court in Sheela Sachidananda Damle v. Deputy Director of Education, Amravati Division, Amravati and others 1982 Mh.L.J. 116. Indeed, the Division Bench in Kamla Prasad Shukla's case did refer to the Full Bench decision and did not purport to differ from the laid down in the Full bench decision. The Full Bench held that the writ petition under Articles 226 and 227 of the Constitution of India are not maintainable at the behest of the teachers for enforcement of their entitlements under Clause 77.4 and other connected clauses of the Secondary Schools Code. This is the view expressed by the Supreme Court right from The State of Assam and another v. Ajit Kumar and others : (1966)ILLJ451SC to J. Tiwari v. Smt. Jawala Devi Vidya Mandir and others, : AIR1981SC122 .
13. Mr. Rebello has placed further reliance upon another judgement of this Bench of the High Court in Mrs. Barreto v. B. Da Crus, Deputy Director of Education, Panjim, Goa and others, Special Civil Application No. 83 of 1976, decide don 14th December, 1982. After going through the said judgment with the assistance of Mr. Rebello, we find that the view expressed by this Bench of the High Court is exactly the same which has been expressed by the Division Bench in Kamla Prasad Shukla's case. In Elsa Barreto's case the Division Bench was careful enough to refer to the judgment of the Supreme Court in Kumari Regina v. St. Aloysius Higher Elementary School and another, : AIR1971SC1920 wherein also the Supreme Court has pointed out that the order issued by the Government to a school covered by the Code, though pertaining to a teacher, could not be enforced against the school at the instance of the teacher.
14. In view of this clear settled position in law, we do not see how the prayer to direct the Director of Education to compel the management of the school to reinstate the appellant could have been granted. In our opinion neither in Kamla Prasad Shukla's case nor in Elsa Barreto's case it has been laid down that such a direction could be properly given under Article 226 of the Constitution.
15. As far as the second prayer is concerned, Mr. Rebello is demonstrably on stronger ground. The narration of facts made by us above shows that the order dated 21st June, 1974 was passed on behalf of the Director of Education legitimising the discontinuance of the appellant's services with effect from 14th November, 1971. We may recapitulate that on 15th September, 1971 the services of the petitioner had been terminated and that termination was held to be irregular. It was also directed by the then Director of Education that the petition should be reinstated. Between 1971 and 21st June, 1974 the petitioner would be deemed to be in service of the 5th respondent if the direction of the Deputy Director of Education is implemented. It is the grievance of the appellant that this order dated 21st June, 1974 was passed behind his back without giving him a hearing though the consequences of the said order of 21st June, 1974 would necessarily be visited upon him.
16. Mr. Dias, learned Government Advocate, has, however, contended that while the deputy Director of Education exercises the powers under Rule 74.2 it is not necessary to give any hearing to the teacher likely to be affected thereby. According to Mr. Dias, sub-rule (2) of Rule 74 only places a restriction on the right of the management of a school to terminate the services of a permanent employee. This restriction is that the employee must be paid certain salary mentioned in the said sub-rule (2) and that approval of the Deputy Director of Education should be taken for the removal of an employee. If, in common law, the teacher's service could be terminated by his employer, he could do it without resorting to this rule. However, the present provision contained in rule 74.2 regulates this common law right of the employer and, therefore, it is not necessary to hear the concerned teacher while giving the approval under the said provision, viz. Rule 74.2.
17. This is a question which had to be investigated into at the time of the hearing of the writ petition filed by the appellant. Prima facie in an order is passed by a Governmental functionary even in his executive capacity, affecting the interest of a person, that other person should be given a hearing. We are not expressing any final opinion on this question because we are of the opinion that this question is to be investigated and decided in the hearing of the writ petition, which however, had been dismissed in limine.
18. Mr.Rebello is also on strong ground when he points out that in the instant case the permission which has been granted by the Director of Education under Rule 74.2 is itself inconsistent with the conditions mentioned in the said provision. We have already noted above that the permission given by the Director of Education to the 5th respondent mentions that the 5th respondent may pay to the teacher, salary from 1st November, 1971 to 14th November, 1971 and thereafter for a period of six months as laid down in Rule 74.2 of the Code. We do not see how, if the teacher is mad permanent from 14th November, 1971, his service could be terminated under rule 74.2 by giving salary up to the date on which he was made permanent and for six months thereafter, especially when such is given in the year 1974. In other words, permission is being given by this letter of 21st June, 1974 to terminate the services of the appellant with retrospective effect, a condition which is totally foreign to the conditions mentioned in Rule 74.2 of the Code. The appellant, therefore, has made out a prima facie strong case in his favour atleast in so far as the letter dated 21st June, 1974 is concerned. The action contained in the letter being an action taken by the functionary of the State, is subject to judicial review of this Court under Article 226 of the Constitution. In our opinion, therefore, the order of the learned Single Judge dismissing in limine the original writ petition filed by the appellant is not correct,.
19. In the result, this appeal must be allowed. The order passed by the learned Single Judge on 16th October, 1982 in Special Civil Application No. 144 of 1981 is set aside. That writ petition is restored to the file of this Court, which will naturally be heard and disposed of in accordance with law. No order as to costs.