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Urmilaben Ishverlal Naik Vs. Director of Education and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 17/B of 1977
Judge
Reported in1985(2)BomCR136
ActsConstitution of India - Articls 226 and 227
AppellantUrmilaben Ishverlal Naik
RespondentDirector of Education and ors.
Appellant AdvocateR.J. Joshi, Senior Counsel and ;L.J. Naik, Adv.
Respondent AdvocateV.B. Nadkarni, Govt. Advocate for respondent Nos. 1 to 3 and ;V.N. Lawande, Adv. for respondent No. 4
Excerpt:
constitution - grant-in-aid - articles 226 and 227 of constitution of india - question of promise between government and petitioner will not arise as grant-in-aid code is matter of agreement between government and society and not between government and petitioner - even though grant-in-aid code rules are mere executive instructions because of representations or promises given by government therein - they create equitable right to receive grant on fulfillment of conditions thereof in favour of management of schools which can be enforced by court when claim based thereon is arbitrarily rejected - petitioner who is a teacher has no right to seek enforcement of instructions under grant-in-aid code against union of india and government of goa, daman and diu. - - the government has full.....g.a. paunikar, j.1. by this petition under articles 226 and 227 of the constitution of india the petitioner, an assistant teacher of sarvajanik vidyalaya, daman, has prayed for a writ of certiorari against the respondents for quashing and setting aside circular no. 62 dated 1-3-1976 filed with the petition at exhibit 'd' and a statement issued by the fourth respondent showing the petitioner's entitlement to lower pay scale filed with the petition at exhibit 'f' and has further prayed for a direction to respondent no. 4 to treat the petitioner as being in the post graduates scale of pay on the basis that respondent no. 1 has not issued the said circular (exhibit 'd') and to pay to the petitioner all her pay, salary, emoluments, allowance, etc. as per post graduate scale of rs. 550-900.....
Judgment:

G.A. Paunikar, J.

1. By this petition under Articles 226 and 227 of the Constitution of India the petitioner, an Assistant teacher of Sarvajanik Vidyalaya, Daman, has prayed for a writ of certiorari against the respondents for quashing and setting aside Circular No. 62 dated 1-3-1976 filed with the petition at Exhibit 'D' and a statement issued by the fourth respondent showing the petitioner's entitlement to lower pay scale filed with the petition at Exhibit 'F' and has further prayed for a direction to respondent No. 4 to treat the petitioner as being in the Post Graduates Scale of pay on the basis that respondent No. 1 has not issued the said circular (Exhibit 'D') and to pay to the petitioner all her pay, salary, emoluments, allowance, etc. as per post graduate scale of Rs. 550-900 (revised).

2. The petitioner was serving as a teacher since November, 1968 in a Government Grant-in-aided public school named Sarvajanik Vidyalaya, managed by the managing committee of the Sarvajanik Vidyalaya' of Daman. The Government pays to this School 100 per cent grant on salaries of the teachers employed in the school and hence the petitioner contends that this public school is purely the disbursing agent of the Government. The Government has full control over this school and generally in the event of some irregularities like non-payment or less payment, etc. by this public school the Government steps in and does the disbursement of salary by its officers as per provisions of the Grant-in-aid Code (hereinafter referred to as 'the Code') which is the order dated 13th August, 1963 made by the Lt. Governor i.e. the Administrator of Goa, Daman and Diu.

3. The petitioner holds the education and professional qualifications viz. (i) a Master's degree of Arts faculty, (ii) a Bachelor's degree of Arts faculty with second class honours-B.A. (Hons.) and (iii) a Bachelor's degree of Education faculty with second class i.e. B.Ed. The petitioner contends that there are six teachers in the staff of the said school holding post graduate degree. However, she joined at the earliest of all of them. Thus, among the six post graduate teachers, she is the senior most and is a confirmed teacher of the said school, as per confirmation order dated 30th August, 1976, filed with the petition at Exhibit 'A'. She was officially, legally, and validity placed in the post graduate scale of pay of Rs. 300-600 after her passing M.A. Examination in May, 1972 vide order dated 5th March, 1971, filed with the petition at Exhibit 'B'. She was later on placed in a still higher pay scale of Rs. 350-700 vide order dated 23-9-1972 issued by the Administrator filed with the petition at Exhibit 'C'. Thus, the petitioner contends that the sanction was accorded by the competent authority for introduction of revised pay scale of Rs. 350-700 to the post graduate teachers, including her. She was, therefore, in the pay scale of Rs. 350-700 for a very long time since May, 1972 till February, 1976. In February, 1976 her basic pay was Rs. 425/- which was subsequently brought down to Rs. 310/- with effect from 1st March, 1976 and this was in pursuance of Circular No. 62 dated 1st March, 1976 issued by respondent No. 1 i.e. the Director of Education withdrawing the post graduate scale of Rs. 350-700 which was being given to her since 1972 as stated above. This Circular is filed with the petition and is marked as Exhibit 'D'. The Manager of the school i.e. respondent No. 4 was informed vide this Circular not to pay the petitioner in the Post Graduate Scale for the month of March, 1976 and onwards. It is this Circular which has given rise to the filling of this petition.

4. The petitioner contends that the impugned Circular is illegal and invalid as there is absolutely no justification for refusing the pay scale which was being given to her right from 1972. She was never informed of the decision to lower her pay scale and no opportunity whatsoever was given to her to personally represent her case. Thus, there was obviously violation of the principles of natural justice in the issuance of the impugned circular. The petitioner, therefore, made several representations but to no effect and hence she was perforced to file this petition seeking the reliefs stated in para 1 above. She contended that once certain protection or benefit has been awarded to her she was certainly entitled to be heard and entitled to be given sufficient and adequate opportunity to show-cause against her being deprived of her said benefits. She further contended that in view of the promises and assurance to her for payment of the post graduate scale of pay the respondents are estoppel under law and are disentitled to lower down her pay scale and in doing so they have abused the power while issuing the impugned Circular. She also contended that when the scales of pay were revised by the competent authority under some statutory rules she was entitled to it as she had been in the post and holding it for a long period with apparently nothing against her in the discharge of her duties. She submits that mere charge in teaching lower class by her does not ipso facto entitle the respondents to revise the pay scale to her detriment when she is a permanent hand working in the same scale and performing the same duty of teaching. She further submits that after maintaining for a considerable period the upgrading of 20 per cent of posts of teachers in the high school to the post graduate teachers on the strength of the orders of the competent authorities with the approval of the Government of India, it was wrong on the part of the Director to modify the Rules of all non Government secondary schools that the payment of post graduate teachers in the post graduate scale in a non-Government school should be suspended simply on the ground that the Government of India gave the opinion that the post graduate teachers are to be allowed only in the Higher Secondary Schools. She submits that upgrading of 20 per cent of the post of teachers in aided High Schools to post graduate teachers was maintained for long years and this was as stated above, with the approval of the Government of India. Consequently, it was not within the competence of the Director of Education to inform the heads of all non-Government Secondary schools that the appointment of post graduate teachers in post graduate scale should be suspended. The statement issued on the basis of the said circular by respondent No. 4 on 29-3-1976 without giving her an opportunity to submit her say is illegal, invalid and unenforceable. She submits that the principles of promissory estoppel are attracted in this case as an actual promise was give to her vide order dated 23-9-1972 filed with the petition at Exhibit 'C' issued by the competent authority that the said pay scale was subject to modification by the Third Pay Commission. Consequently, the Government of India. Ministry of Education and Social Welfare are estoppel from going back from their promise which they gave by way of conveying their approval to the sanction of the pay scale of Rs. 350-700 with the concurrence of Ministry of Finance dated 26-11-1971 and 31-5-1972. She submits that the principles of promissory estoppel are enforceable not only against respondent No. 1 but also against the Education Minister of this Union Territory. She contends that she continued in the service of the Government aided public school managed by the fourth respondent only because she was given the revised post graduate pay scale mentioned above.

5. Respondent No. 4 filed a return duly sworn in by one Premabhai Chhibabhai Tangal, who is the President of Mahatama Gandhi Memorial Education Society, Daman and submited that the society is not joined as a party by the petitioner but only the Sarvajanik Vidyalaya is made a party as respondent No. 4. The petition filed by the petitioner is untenable against the Sarvajanik Vidyalaya as it is not a legal entity and cannot sue or be sued. This respondent further submitted that the petitioner was and is working as an Assistant teacher in the secondary section. In September, 1976, when the Higher Secondary section was started by the society, for the first time, the society published advertisements inviting applications from qualified teachers for teaching classes of Higher Secondary Section. The petitioner was not having the requisite qualifications mentioned in the advertisement. However, as qualified teachers for Higher Secondary section were not then available, the petitioner along with several other teachers in similar positions were given duties for teaching in the Higher Secondary Classes as a measure of mere temporary arrangement and that too after obtaining an undertaking from her. This respondent, therefore, contended that the petitioner is not entitled to claim any special privilege or benefit for teaching Higher Secondary Section. This respondent further contended that when better qualified teachers were available the petitioner was requested to go back and work as an Assistant teacher in the Secondary Section only. This respondent further submitted that the Government does not have full control over the school though it pays 100 per cent grant. The control exercised by the Government is in accordance with the Grant-in-aid-Code Rules. This respondent submitted that appointments of teachers are made by the society as and when it requires and they are paid in accordance with the scale prescribed by the Government. This respondent further submitted that the petitioner was not holding post graduate degree at the time when she was recruited and though subsequently she secured post graduate degree she could not secure second class. This respondent further submitted that the petitioner can be senior amongst the post graduate teachers. However, amongst the whole staff she is not the senior most. This respondent, however, submitted that the petitioner started getting salary in the scale of post graduate teacher by virtue of Circular dated 23-9-1972, annexed to the petition Exhibit 'C'. This respondent admitted the effects of Circular No. 62 dated 1-3-1972 which is the impugned Circular but denied that this Circular is illegal and invalid. This respondent specifically submitted that under the Grant-in-aid Code it is required to carry out the instructions and orders issued by respondent No. 1 and this respondent accordingly carried out the said instructions. This respondent submitted that it is for the Government of India to formulate the policy which they have done by issuing the impugned Circular. The petitioner's pay scale has come down to the extent stated by her as a result of the said circular. The impugned circular being the final opinion of the Government on the point of pay scale to be given to the teachers with post graduate qualifications is binding on this respondent and in giving effect to it no wrong or illegality is done by this respondent. Consequently, the petitioner has no right to make any grievance against this respondent. This respondent further submitted that the Circulars and orders earlier issued were only temporary and they were subject to final opinion which is embodied ultimately in Circular No. 62 marked in the case as exhibit 'D'. This respondent submitted that the reduction in her pay scale has been done because of the final decision arrived at by the Government as embodied in Circular No. 62. Consequently, the said circular did not, in any way, infringe upon the fundamental rights of the petitioner. This respondent submitted that with effect from June, 1976, the new formula 10+2+3 was introduced in the Union Territory of Goa, Daman and Diu by the Education Department. Until that time i.e. until the end of academic year 1975-76 the standard XI was conducted as part of Secondary School in the High School run by the Society. However, the separation of Standard XI and its inclusion in the Higher Secondary Section came in the case of Daman in September, 1976. The petitioner was entrusted with the work of teaching in the Secondary School as Assistant teacher class upto Standard XI in the old course. The new formula was not introduced in Daman, and hence, the society could not start Higher Secondary Section, as a result of which standard XI continued to function till September, 1976 when the Government permitted the Society to open the Higher Secondary Section. The petitioner was, therefore, requested to work in the Higher Secondary Section under an undertaking dated 16-9-1976. This respondent admitted that the petitioner continued working in the Higher Secondary Section and teaching standard XI until the end of the academic year 1976-77 i.e. upto March, 1977. However, this respondent contended that as qualified teachers were available the petitioners was asked to go back and work as Asstt. teacher in the Secondary Section only. Consequently, she ceased to be a teacher in the Higher Secondary Section from that time and the action had to be taken in pursuance of the impugned Circular. The petitioner had, therefore, no right to make any grievance and the petition deserves dismissal.

6. The other respondents 1 to 3 did not file their return in reply to the averments in the petition.

7. The learned Government Advocate for respondents 1 to 3, however, raised an objection to the maintainability of this petition against respondents 1 to 3 on the ground that the Grant-in-aid Code are mere executive instructions. It is at best a contract between the management and the Government. The petitioner is not a party to this contract. Respondent No. 4 is the employer of the petitioner under the contract of employment. Respondent No. 4 is an autonomous body having no effective control by respondents 1 to 3. Under the circumstances, respondent 4 is not the agent of respondents 1 to 3 and hence the petitioner has no right to ask for a writ against respondents 1 to 3. The learned Counsel for respondent No. 4 has also raised an objection that the society has not been joined as a party in this petition and the party joined is the Sarvajanik Vidyalaya, Daman, which is run and managed by the Mahatma Gandhi Memorial Education Society. This society has multifarious activities and the management of the said Vidyalaya is only one of its activities. The Sarvajanik Vidyalays being not a legal entity cannot sue or be sued and hence the petition is bad for non-joinder of necessary party and deserves dismissal on this ground alone. Thus, these objection have to be dealt with in two parts i.e. (i) as regards the preliminary objection raised by the learned Government Advocate as to the maintainability of the petition at the instance of the teacher and objection raised by the learned Counsel for respondent No. 4 as to the maintainability of the petition on the ground of non-joinder of the necessary party and (ii) on merits. We propose to deal with the merits of the petition first and then deal with those objections.

8. It is an admitted fact that the petitioner has been serving as a teacher in the Sarvajanik Vidyalaya run by the Mahatma Gandhi Memorial Education Society since November, 1968. It is also an admitted fact that she got a Master's degree of Arts faculty from the S.N.D.T. Women's University, Bombay, in 1972 and B.A. (Hons). of Gujarat University in 1969 and B.Ed. of the South Gujarat University in 1973. It is also an admitted fact that there was in all six teachers holding post graduate degree and the petitioner was the senior most among them. It is also an admitted fact that she was confirmed as a teacher of the said school as per confirmation order dated 30th August, 1976 issued by respondent No. 4 confirming her since June, 1974. Her pay scale was revised vide order dated 5-3-1971 with effect from 27-5-1970 to Rs. 300-600. It is also not in dispute that vide further order dated 23-9-1972 this pay scale was revised to Rs. 350-700 with effect from 27-5-1970 and this pay scale was given to her as a post graduate teacher and she was receiving this scale of salary since 27-5-1970 till 1-3-1976. In fact, it was represented to her that the pay scales given to her are subject to modification by the Third Pay Commission as per Order dated 23-9-1972 filed with the petition at Exhibit 'C'. These orders were issued by the Administrator of Goa, Daman and Diu. The petitioner is a teacher having post graduate qualifications. The Sarvajanik Vidyalaya run by the Mahatma Gandhi Memorial Education Society is a private or non-Government institution receiving aid from the Government under the Grant-in-aid Code in force in the territory of Goa, Daman and Diu and the Grant-in-aid is for Secondary Schools, Colleges and other Educational Institutions, except the Primary Schools. The petitioner was granted higher pay scales as post graduate teacher in pursuance of the orders of the Administrator addressed by the Director of Education, Government of Goa, Daman and Diu, to the Manager of the school. These orders were acted upon and the petitioner was actually paid in pursuance of these orders. However, it appears a letter was issued by the Director of Education to the Managers of all aided Secondary Schools that the Government of India have subsequently informed that the post graduate scales are allowed only in Higher Secondary Schools and upgrading of 20 per cent of posts of teachers in High Schools to post graduate teachers is irregular. Respondent No. 4 as also the Managers of all aided Secondary Schools are informed that the post graduate scales given to the teachers should be withdrawn and as such no teacher should be paid in the post graduate scales from the month of March, 1976 onwards. It was also informed that the teachers drawing the post graduate scales are to be placed in the respective graduate scale by counting their service for which they were paid in the post graduate scale of pay as in the respective graduate scale and by giving them increments in the lower scale for their service in the post graduate scale i.e. the period of service rendered by the teachers in the post graduate scale is to be taken into consideration for fixing their basic salary in the graduate scale. It appears that thereafter sanction was accorded for implementation of the new formula viz., 10+2+3 in the Union territory of Goa, Daman and Diu, by the Education Department. However, this formula was not introduced at Daman till September, 1976 and the petitioner was continued to be paid in the same pay scale as the pay scale of the post graduate teacher. As the petitioner had already obtained the post graduate degree and was continued on the pay scale of a post graduate teacher, there was no reason or justification for lowering her pay scale on the basis of the impugned Circular. In fact, no irregularity was committed by respondent No. 4 in upgrading 20 per cent post of teachers in the High School to post graduate teachers as there was no provision in the Grant-in-aid Code forbidding the management from doing so. Consequently, the irregularity alleged to have been committed in upgrading 20 per cent post of teachers in High School to post graduate teachers is not contract. It cannot also be said that the same was done without obtaining Government orders when, in fact, the pay scale was sanctioned under written orders. Having sanctioned the pay scale from 1972 and even subsequently enhanced the same under written orders there is no justification for withholding the higher pay scales given to the post graduate teachers inclusive of the petitioner. In our view the view, expressed in the impugned Circular appears to be wholly illegal and unjustified and contrary to the provisions of the Grant-in-aid Code and hence the direction to the Government of Goa, Daman and Diu to remove the alleged irregularity in payment of higher scale of pay to the teachers having post graduate qualification being based on wrong assumptions cannot at all be sustained. In fact, the similar and identical questions arose in the case of Ravindranath Pai Raiturkar v. The Union of India and 3 others, Special Civil Application (Writ Petition) No. 66/B of 1976), Smt. Myrtle Juniet Monteiro D'Souza v. Mary Immaculate Girls High School, 3 others (Special Civil Application (Writ Petition) No. 21/B of 1980) and All Goa Secondary School Teachers Association v. The Union of India and 4 others, Special Civil Application (Writ Petition) No. 170/B of 1976 and this Court held that similar circular was on a total misunderstanding and misreading of the provisions of the Grant-in-aid Code and hence the similar direction to the Government of Goa, Daman and Diu to remove the alleged irregularity to the payment of higher pay scale to the teachers having post graduate qualification being based on wrong premise was untenable. These petitions were decided by a Division Bench of this Court on 23-2-1983.

9. We now propose to deal with the objection raised by the learned Counsel for the respondent No. 4 that the petition is bad for mis-joinder of necessary parties and the petition must fail on this ground alone. There is no merit in this submission for more than one reason. In this petition the party joined as respondent No. 4 is (the management of Sarvajanik Vidayalaya, through its head master having his office at Daman). The learned Counsel for respondent No. 4 contends that Sarvajanik Vidyalaya is a school run by Mahatma Gandhi Memorial Education Society, Daman, which has multifarious activities out of which the management of the school is one of its activities. He meant to say that the Vidyalaya is only joined and the institution which runs this Vidyalaya is not joined as a party. In fact, as is obvious from the name of the respondent the management is joined as a party and not the said Vidyalaya as such. The notice was received by the headmaster and the return is filed by the President of the Mahatma Gandhi Memorial Education Society and not by the headmaster. Thus the management of the said Vidyalaya was joined as a party and the President of the said Society has filed the return. It cannot, therefore, be said that any prejudice is caused to the society or the society was unaware of the petition filed against it by the petitioner. In fact, after the receipt of the notice the real person joined as a party, the President of the Society has rightly filed the return holding that the Society is a party as respondent No. 4. An affidavit is also filed by Premabhai Chhibabhai Tangal in his capacity as the President of the said Society on 10th April, 1981 in support of its averments. Under the circumstances, the objection appears to be frivolous and we reject the same being without substance and meritless, and hold that the petition does not suffer from any infirmity on account of non-joinder of necessary party.

10. Though in our judgment, on merits, the said decision vide Circular dated 1-3-1976 issued by the Director of Education, Government of Goa, Daman and Diu, to respondent No. 4 cannot be sustained and the contention of the learned Counsel for the petitioner in this regard has considerable substance, the crucial question that arises for consideration in this writ petition is whether the petitioner-teacher is entitled to the issue of a writ both against respondent 1 to 3 and respondent No. 4 in the enforcement of the provisions of Grant-in-aid Code or Circular or instructions issued in pursuance thereof. Admittedly, no writ can be issued against the school or the society running the school as it is a private party and not a State. It is well settled that a mandamus lies only to secure the performance of a public or statutory duty though it is not necessary that the person or authority or whom the statutory duty is cast need be a public or an official body if it is found that a society has some obligation to perform a statutory or public duty, then it may not be possible to contend that no writ can be issued to the society merely because it is a society registered under the Indian Societies Act to enforce the performance of the public duty or a statutory duty. In this case the Grant-in-aid Code are only executive instructions or a contract between respondent No. 4 and the Government and the petitioner is not a party to it. The contract of employment is between the petitioner and respondent No. 4 and the contract by no stretch of imagination between them create statutory or public duty but it creates merely contractual obligation and hence a writ of mandamus will not lie to enforce such contract as held by the Division Bench of this Court in Scindia Steam Navigation Co. Ltd. and another v. Scindia Employees Union and others, 1983 Mh.L.J. 1058. In the State of Assam and another v. Ajit Kumar Sarma and others, : (1966)ILLJ451SC , a similar question arose as the question in this petition and while considering the right of a teacher to a writ in enforcement of the direction of the Government to management affecting ultimately the teacher was considered by the Supreme Court and the Supreme Court held that---

'There is no law to prevent the State from prescribing the conditions for giving grants-in-aid to educational institutions by mere executive instructions which have not the force of statutory Rules. The Assam Aided College Employees Rules (1960) regarding Conduct and Discipline of Employees of Aided Educational Institutions admittedly have no statutory force and are framed in order to give revised grants to private colleges to enable them to give higher scales of pay etc., to their teachers in accordance with the recommendations of University Grants Commission. Where such conditions of grants-in-aid are laid down by mere executive instructions it is open to a private college to accept those conditions or not to accept them. It is only for the Governing Body of the College to decide whether to carry out any direction contained in mere administrative Instructions laying down conditions for grant-in-aid. Further it is open to the Governing Body not to carry out any such instruction which is not based on Rules having statutory force, and then it would naturally be open to the State to consider what grant to make. But it the Governing Body chooses to carry out the instruction, it can hardly be said that the instruction is being carried out under any threat. It is not open to a teacher to insist that the Governing Body should not carry out the instruction. The rules for the purpose of grant-in-aid being-as in this case merely executive instructions confer no right of any kind on teachers and they cannot apply to the High Court for a mandamus against the State through the Director of Public Instruction for enforcement on non-enforcement of the Rules, even if indirectly there may have been some effect on them because of the grant-in-aid being withheld by the State in whole or in part.'

This view was reiterated by the Supreme Court in Cyril E. Fernandes v. Sr. Myria Lydia and others, : [1978]1SCR388 . In this case a question as to the validity of the decision by the Government on the management of the school to reinstate the teacher petitioner and the stoppage of grant-in-aid as penal measure was under challenge when the management decided to comply with the said decision. The authorities who were responsible for making the impugned order and against whom the writ had gone had not appealed. However, the appeal was at the instance of the teacher. The Supreme Court held that it was clear that the appellant i.e. the teacher was not directly concerned with the question whether the Rules in the grant-in-aid Code conferred on the management of the school an enforceable right against the Government which was entirely a matter between the management and the Government and in this view negatived the teacher's right to agitate the question. Similar and identical question arose before the Division Bench of this Court in three Special Civil Applications No. 66/B of 1976, Ravindranath Pai Raiturkar v. The Union of India and 3 others No. 21/B of 1980, (Smt. Myrtle Juliet Monteiro D'Souza v. Mary Immaculate Girls High School and 3 others, and No. 170/B of 1976, All Goa Secondary School Teachers Association v. The Union of India and 4 others, and the Division Bench of this Court held vide common judgment dated 23-2-1983 relying upon the aforesaid Supreme Court decisions that the petitioners who are teachers in these petitions seeking to enforce against the Union of India and the Government of Goa, Daman and Diu have no right to do so and would not be entitled to the issue of the writ, and dismissed all the three petitions though on fact the Division Bench held that the impugned order in the said petitions cannot be sustained. The learned Counsel for the petitioner also relied upon this decision of the Division Bench of this Court only for the purpose of finding on fact. This decision, as a whole, is binding on us, and in our judgment this decision is a good law and does not suffer from any infirmity.

11. The learned Counsel for the petitioner submitted firstly that the Government having consented to the revision of pay scale from time to time are disentitled to retract the orders on the principles of promissory estoppel as the petitioner was given benefit of the orders from 1972 to 1st March, 1976. In our judgment the question of promise between the Government and the petitioner will not at all arise as the grant-in-aid Code is a matter of agreement between the Government and the Society and not between the Government and the petitioner. This issue has been squarely dealt with by the Gujarat High Court in Amratlal Ramanlal and others v. The State of Gujarat and others, : AIR1972Guj260 , which lays down---

'Even though the Gujarat Grant-in-aid Code rules are mere executive instructions, because of the representations or promises given by the Government therein, they create an equitable right to receive grant on fulfilment of conditions thereof in favour of management of schools which can be enforced by the Court when the claim based thereon is arbitrarily rejected.'

Thus the petitioner gets no right against the Government as no right is created by contract between the society and the Government. This view also finds support in Kumari Regina v. St. Aloysius Higher Elementary School and another, : AIR1971SC1920 , which lays down that---

'The enforcement of Part II rules for recognition and aid to private schools 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 on the ground of a breach or non-compliance of any of the Rules. Thus, when in appeal under rule Department passes order setting aside management's order reducing rank of Head Mistress to Asst. teacher, such order is not enforceable in Court of law.'

There is, therefore, no force in the submission of the learned Counsel for the petitioner.

12. The learned Counsel for the petitioner though relied upon the aforesaid Division Bench decision of this Court for the findings on fact, he submitted that the law as regards the maintainability of writ at the instance of the teacher against the management is changed and the view of this Court that the petitioners who are teachers seeking to enforce against the Union of India and the Government of Goa, Daman and Diu, the Instructions under the said Grant-in-aid Code have no right to do so and would not be entitled to the issue of the writ needs to be reviewed. He submitted that the Government pays to respondent No. 4,100 per cent grant on teacher's salaries and respondent No. 4/ society is purely the disbursing agency of the Government. The Government has full control over the school as in the even of some irregularities the Government itself takes over the management of the school under Rule 178 of the Grant-in-aid Code. The Society is therefore, the agent and instrumentality of the State. The learned Counsel has relied upon a number of decisions in support of his proposition cited below and we propose to discuss all of them---

1) : (1981)ILLJ103SC Ajay Hasia etc. v. Khalid Mujib Sehravardi and others etc..

2) : AIR1975AP35 Harijander Singh v. Selection Committee, Kakatiya Medical College, Warrangal and another.

3) All India Services Law Journal 1981(2) Vol. 2-604 Mohd.. Abbas Khan v. Bal Bhavan Board and others.

4) All India Services Law Journal 1985(1) 90-Manmohan Singh Jaitla v. The Commissioner, Union Territory Chandigrah and others.

5) 1985(1) C.C.C. 311 D.P. Seshachalam v. Administrative Staff College of India, Bella Vista. Hyderabad.

6) 1971 (II) AW.R. 352 Kailas Pati v. Governing Council of Shri Ramachandra Arts and Science College, Kothagudem.

7) : [1985]1SCR339 Tikaram v. Mundikota Shikshan Prasarak Mandal and others.

13. In Ajay Hasia v. Khalid Mujib Sehravardi and others, : (1981)ILLJ103SC , the facts are that the Regional Engineering College, Srinagar, is one of the fifteen Engineering Colleges in the country sponsored by the Government. The College is established and its administration and management are carried on by a society registered under the Jammu and Kashmir Registration of Societies Act, 1898. Having regard to the Memorandum of Association and the Rules of the society it was held that the society is an instrumentality or the agency of the State and the Central Governments and it is an 'authority' within the meaning of Article 12. The composition of the society is dominated by the representatives appointed by the Central Government and the Governments of Jammu & Kashmir, Punjab, Rajasthan and Uttar Pradesh with approval of the Central Government. The monies required for running the college are provided entirely by the Central Government and Government of Jammu and Kashmir and even if any other monies are to be received by the society, it can be done only with the approval of the State and the Central Governments. The rules to be made by the society are also required to have the prior approval of the State and the Central Governments and the accounts of the society, have also to be submitted to both the Governments for their scrutiny and satisfaction. The society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the society can be disposed of in any manner without the approval of both the Governments. The State and the Central Government have even the power to appoint any other person or persons to be members of the society and any member of the society other than a member representing the State or the Central Government can be removed from the membership of the society by the State Government with the approval of the Central Government. the Board of Governors, which is incharge of general superintendence, direction and control of the affairs of society and of its income and property is also largely controlled by nominees of the State and the Central Governments. Thus, the State Government and by reason of the provision for approval, the Central Governments also, have full control of the working of the society. Thus, 100 per cent grant by the Government to the society nor the tests laid down in the International Airport Authority's case, : (1979)IILLJ217SC , reported in para 9 of the judgment in Ajay Hasia's case are not conclusive or clinching but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression 'other authorities', it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government with the sweep of the expression. The society in the instant case in hand is an autonomous body with exclusive powers as regards its activities without any kind of interference by the state. The Government only gives 100 per cent grants and if there are irregularities in disbursement thereof, it steps in and itself makes the disbursement. Except this, the Government has no control at all over the society. Consequently, this case by no stretch of imagination can assist the submission of the learned Counsel for the petitioner.

14. In Harijander Singh v. Selection Committee, Kakatiya Medical College, Warrangal and another, : AIR1975AP35 , the question arose was whether a writ petition lies against Kakatiya Medical College which is a private college aided by the Government and affiliated to the Osmania Universtiy. The rules of affiliation made by the university have the force of law. These rules create certain rights in the teachers of the affiliated colleges. They are not mere servants of the college. They have a status although they enter into a contract and in any case they hold office and hence it was held that the rules of affiliation even if taken to be non-statutory but mere administrative instructions issued by the University or the Grant-in-aid Code by the Government they would not come in the way of issuance of such a writ. In the present case, there is a simple contract between the society and the Government as per Grant-in-aid Code and no status is created in the teacher. Consequently, this case also does not support the proposition of the learned Counsel for the petitioner. 1971 (2) AW.R. 352, Kailash Pati v. Governing Council is referred to in this case and held that it is rightly decided. It is held that the jurisdiction to supervise the exercise of their jurisdiction by inferior Tribunals has never been dependent upon the source of the Tribunal's authority to decide issues submitted to its determination except where such authority is derived solely and exclusively from agreement of the parties to the determination. The latter case falls within the field of private contract and is within the jurisdiction either of an arbitrator or the Civil Court. In so far as certiorari, prohibition and declaration are concerned, these writs can be issued against a non-statutory body discharging public duties. More so when these public bodies receive grants from the Government as voted in the legislature and are affiliated to the University which is a statutory body and controlled by it. Public bodies such as affiliated colleges placed as they are cannot be called as pure private bodies discharging purely private duties. Nor can they be characterised as domestic Tribunals in the strict sense of that word. The relationship of teachers with such colleges is based on a tripartite arrangement and contract.

It is held that similar is the position with regard to students. The admissions are governed by the University rules and regulations Government has also made certain rules relating to admission to medical colleges. The affiliated colleges and the teachers and students are also bound by these rules and regulations. It was, therefore, held that any administrative action which adversely affects the student must be taken after observing the rules of natural justice, and thus, whether it is a lecturer of an affiliated college or its student, everyone of them can take advantage of the remedies provided in Article 226 of the Constitution. The facts of the present case is altogether different and hence these cases will also not assist the learned Counsel for the petitioner to support his proposition.

15. In Mohd. Abbas Khan v. Bal Bhavan Board and others, reported in (1981) 2 S.L.R 644, it is held relying upon Ajay Hasia's case that the writ petition is maintainable against an authority under Article 226 of the Constitution. All that has to be seen is whether the respondent-Society is to be regarded as an instrumentality or the agency of the State or not. In the present case on facts we have held that respondent No. 4 society is not the agency or instrumentality of the State. The case, therefore does not support the proposition of the learned Counsel for the petitioner as the facts are different from the facts in the present case.

16. In D.P. Seshachalam v. Administrative Staff College of India Bella Vista, Hyderabad. (1985) 1 C.C.C. the question arose whether an order of termination of service passed without giving any show-cause notice and without disclosing valid and substantial reasons for termination by the management of the college is invalid and unconstitutional as it is violative of principles of natural justice. It is observed that :---

'In Ajay Hasia v. Khalid Mujib, our Supreme Court held the action of a private society running an Engineering College to be a State for the purpose of part III of the Constitution. The reason for that conclusion is found in the participation of the State in the society and association of the State with that Society. In other words, the Supreme Court held that even indirect State action is equally subject to the supervision of the fundamental rights as direct State action has always been. In our case, it is clear that there is no direct State action. But the question is, whether the respondent-college in this case is, 'propelled, supported and guided' by the State. Whether the respondent-college is a State in the traditional sense is not a complete question. If their is State participation, association and control, it should be held that the respondent-college is a State for the purpose of enforcement of fundamental rights. The circumstances surrounding the establishment of the respondent-college, its management and its functions cumulatively considered lead me to hold that the respondent-college is a State within the meaning of the Constitution.'

The facts in the present case are totally different as we have held that there is no direct control or even indirect control of the Government in the management of the Society. This case also does not assist the petitioner.

17. In Manmohan Singh Jaitla v. The Commissioner, Union Territory Chandigarh & Others, reported in (1985)1 S.L.J , the decision questioned before the High Court was of Deputy Commissioner and the Commissioner exercising powers under section 3 of 1969 Act i.e. Punjab Aided Schools (Security of Service) Act, 1969, and the statutory authorities are held amenable to the writ jurisdiction of the High Court. A protection was given to the teacher and a right was created in him as section 3 of the said Act makes it obligatory to hold a disciplinary inquiry before an employee of an aided school can be either dismissed, removed or reduced in rank. The mandatory provision was ignored while dispensing with the services of the teacher. As we have earlier held, in the present case, no right is created in the teacher. Consequently, this case also does not apply to the facts of the present case.

18. We now come to the last case relied upon by learned Counsel for the petitioner, : [1985]1SCR339 ; Tikaram v. Mundikota Shikshan Prasarak Mandal and others. In this case, it is held that it is true that no teacher could enforce a right under the School Code which is non-statutory in character against the Management. But, where the writ petition filed by the headmaster of a private school was directed against an order passed in a quasi judicial proceeding by the Director of Education on review a jurisdiction not conferred on him and no relief was claimed by the headmaster against the management, the writ petition would be maintainable. The facts in this case are quite different from the facts in the present case and this case is, therefore, inapplicable to the present case.

19. In view of our discussion above, the contention of the learned Counsel for the petitioner deserves to be rejected as regards the maintainability of the petition. In our judgment, the petitioner who is a teacher seeking to enforce against the Union of India and the Government of Goa, Daman and Diu, the instructions under the said Grant-in-aid Code have no right to do so and, therefore, is not entitled to the issue of writ as prayed for. The result, therefore, is that this petition fails. Rule in the petition stands discharged. However, under the facts and circumstances of this case, there will be no order as to costs.

20. After delivery of the judgment, the Counsel for the petitioner, Mr. Naik orally applied for leave to appeal to the Supreme Court. In our opinion, the case does not involve any substantial question of law, of general importance or relating to the interpretation of the Constitution. We, therefore, refuse to grant leave.


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