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BaldwIn Boys' High School (By Its Board of Governors) Vs. Director of Public Instruction and Anr. (04.12.1968 - KARHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 1040 of 1966
Judge
Reported in(1970)ILLJ551Kant; (1969)1MysLJ598
ActsGrant-in-aid Code - Rules 9 and 50
AppellantBaldwIn Boys' High School (By Its Board of Governors)
RespondentDirector of Public Instruction and Anr.
Excerpt:
.....in receipt of annual allotment in that manner it could not conform to description of grant-in-aid- school - rule 50 (viii) not applicable to baldwin boys' high school.(ii) jurisdiction - whether even if baldwin boys' high school is not grant-in-aid school, termination by management of that school of services of one of its teachers could be questioned in appeal under rule 50 (viii) - admittedly baldwin boys' high school did not receive any grant-in-aid so it was at liberty to terminate services of its teachers - in case such termination has been made on domestic enquiry conducted by tribunal appointed by it, no appeal could be preferred against such termination to director of public instruction under rule 50 (viii) - director had no jurisdiction to entertain such appeal. - income tax..........of one of its teachers could be questioned in an appeal under rule 50(viii) of the grant-in-aid code. the grant-in-aid code contains a multitude of provisions with respect to more than one matter. chapter iii enumerates the general conditions subject to which a grant-in-aid is or could be made. rule 9 which is contained in that chapter says that a grant-in-aid is permissible only to an institution which has received recognition from the department of public instruction. that rule contains as many as fourteen clauses, which incorporate the conditions subject to which a grant-in-aid could be made to a private educational institution. those clauses regulate recognition and not the conditions of service of the employees of that institution. on the contrary, chap viii enumerates the.....
Judgment:

Somnath Ayyar, J.

1. The Board of Governors of the Baldwin Boys' High School, Bangalore, which is a private educational institution, is the petitioner before us. Respondent 2, Mondol, was a teacher in that school. By a resolution of the Board of Governors passed on 15 January, 1963, Mondol's services were terminated on payment of three months' salary in lieu of notice which was possible for the Board of Governors to do under the agreement between Mondol and the management of the school.

2. Against this order of termination, Mondol preferred an appeal to the Director of Public Instruction under rule 50(viii) of the Grant-in-aid Code for Secondary Schools in the State of Mysore. The Director of Public Instruction decided that appeal in favour of Mondol on the ground that the proceeding which culminated in the termination of Mondol's services was not in accordance with law and so he directed a fresh enquiry in strict accordance with rule 50 of the Grant-in-aid Code.

3. From this decision, the Board of Governors appealed to Government, and, at one stage, Government set aside the order of the Director on the ground that he had no jurisdiction to hear an appeal with respect to the termination of one of its own employees by a private institution. But this order made by Government was set aside by this Court in Writ Petition No. 796 of 1964 which was presented by Mondol, and, in the course of its judgment which this court delivered on 4 March, 1965, liberty was reserved for the Board of Governors to contest the Director's jurisdiction to entertain or hear the appeal when the matter went back to him.

4. The sequel to this judgment was that on behalf of the Board of Governors an argument was presented before the Director that he had no jurisdiction to entertain the appeal. But the objection was overruled by the Director on more than one ground. The first mistake committed by him was to think that this Court had 'recognized' his jurisdiction and that that was the reason which impelled the decision of this Court by which the order made by Government in the appeal preferred by the Board of Governors was set aside. The second reason assigned by him was that the management had terminated the services of Mondol under rule 50 of the Grant-in-aid Code and that at every relevant stage the Board of Governors had 'recognized' the jurisdiction of the Director. The Director concluded with the observation that since the Baldwin Boys' High School was a recognized institution, it could not dispute the Director's jurisdiction to hear an appeal from an order made by it under rule 50 of the Grant-in-aid Code.

5. In this writ petition, the Board of Governors asks to quash the order made by the Director by which he asserted his jurisdiction. We are also asked to issue a writ of prohibition restraining him from hearing the appeal.

6. The rules which the Grant-in-aid code incorporates have since been amended by an order made by Government on 17 June 1967, but the reference in the course of this judgment will be to the rules as they stood when Mondol preferred his appeal to the Director of Public Instruction.

7. The principal argument maintained before us on behalf of the Board of Governors by Sri Krishnamurthi was that an appeal to the Director of Public Instruction under rule 50(viii) of the Grant-in-aid Code would lie only if a private educational institution was the recipient of any governmental aid such as the one to which the Grant-in-aid Code refers and that since the Baldwin Boys' High School was not the recipient of any such governmental aid, the termination of the service of an employee of the school in consequence of an adjudication made by a domestic tribunal constituted by the management of the school was impervious to the exercise of appellate authority by the Director of Public Instruction.

8. The second submission made to us was that the rules which the Grant-in-aid Code incorporates do not have the status of any statutory rules since they are no more than a mere compendium of administrative instruction issued from time to time by the Director of Public Instruction to which Government accorded their approval.

9. The main question to which we should address ourselves is whether as contended for the Board of Governors, the appellate power created by rule 50(viii) of the Grant-in-aid Code could be exercised only in a case where the educational institution received governmental aid.

10. Clause (iv) of rule 50 provided for the termination of the services of a permanent teacher on grounds of insubordination; inefficiency, neglect of duty, misconduct; moral delinquency and the like, after an enquiry by an enquiry committee.

11. Clause (v) of that rule authorizes the dismissal of a teacher if that enquiry committee is of the opinion that it is undesirable to continue his service.

12. Clause (vii) provides that in all cases of termination of service the findings recorded at the enquiry and the reasons for termination shall be transmitted to the Deputy Director of Public Instruction.

13. Clause (viii) under the provisions of which Mondol preferred his appeal to the Director of Public Instruction reads :

'50 Termination of service - Punishment :-

* * * (viii) The teacher shall be free to make an appeal to the Deputy Director of public Instruction against the order of termination provided that it is filed within thirty days of the receipt of the letter sent by registered post referred to in Para. (vii) supra. The appeal shall be decided by the Deputy Director of Public Instruction within three months form the date of the appeal. A final appeal shall lie to the Director of Public Instruction within thirty days from the date of receipt of the decisions of the Deputy Director of Public Instruction. The decision of the Director shall be final. It will be communicated to the teacher within three months from the date of the appeal. If for special reasons the enquiry takes a longer time, the Director should submit a report to Government giving reasons for the delay and obtain an extension of time for the disposal of the appeal. However, in no case, should the period exceed six months.

* * *'

14. It has been explained to us that although Clause (viii) of rules 50 authorizes an appeal to the Deputy Director of Public Instruction in the first instance and a second appeal to the Director, Mondol preferred his appeal to the Director and not to the Deputy Director since the Deputy director had accorded his approval to the termination of his services. In the view that we take, it is not necessary for us to discuss the question whether that direct appeal to the Direct was possible.

15. If it could be said that the provisions of Clause (viii) of rule 50 governed the termination of the services of a teacher employed in a private educational institution which does not receive any governmental aid such as the one to which the Grant-in-aid Code refers, the objection to jurisdiction which was raised before the Director should fall. If not, the writ of prohibition which is sought by the Board of Governors should issue.

16. It was maintained by Sri Sait appearing for Mondol that the Baldwin Boys' High School was in fact an aided school and that the allegation to the contrary is not true. It was also submitted by him that even otherwise, since that school was a recognized school within the meaning of that expression occurring in the Grant-in-aid Code, the provisions of rule 50(viii) became applicable and that an appeal would lie to the Director from an order by which a recognized private educational institution terminated the services of one of its teachers.

17. It is clear that the assertion made by Sri Sait that the Baldwin Boys' High School is the recipient of governmental aid is quite groundless. That that is so is clear from a communication addressed on 2 September, 1965 by the Deputy Director of Public Instruction to the principal of the Baldwin Boys' High school by which he was informed that the benefit of a scheme known as the T.B.S. Scheme could not be made available to his school since it was not an aided high school. In the affidavit accompanying this writ petition of which the deponent is the acting principal and correspondent of the Baldwin Boys' High School, it is stated that that school does not receive any grant-in-aid from Government and the truth of that allegation is not repudiated in the counter-affidavit of which the Director of Public Instruction is the deponent. In that situation, the mere assertion by Mondol in his own counter-affidavit can scarcity be of any assistance to him since in support of his allegation that the school does receive a grant-in-aid, he has produced no material before us.

18. It was, however, pointed out by Sri Sait that in a communication addressed to the Director by the principal of the school on 10 March, 1966, it was admitted has certain ad hoc grants had been received by the school from Government from time to time. But it is clear from the scheme of the Grant-in-aid Code that what makes a school an aided school is the payment and receipt of periodical grants in manner set out in that code and that ad hoc grants made to an educational institution do not impress upon that institution the status of a grant-in-aid school.

19. The first rule which is in the Grant-in-aid Code says that the purpose of a grant-in-aid is the annual allotment by Government of money to educational institutions under private management and local bodies with the object of extending and improving secular instruction in the State. So, unless the Baldwin Boys' High School was in receipt of an annual allotment in that manner, it could not conform to the description of a grant-in-aid school.

20. So, the next question which we should discuss is whether even if the Baldwin Boys' High School is not a grant-in-aid school, the termination by the management of that school of the services of one of its teachers could be questioned in an appeal under rule 50(viii) of the Grant-in-aid Code. The Grant-in-aid Code contains a multitude of provisions with respect to more than one matter. Chapter III enumerates the general conditions subject to which a grant-in-aid is or could be made. Rule 9 which is contained in that chapter says that a grant-in-aid is permissible only to an institution which has received recognition from the Department of Public Instruction. That rule contains as many as fourteen clauses, which incorporate the conditions subject to which a grant-in-aid could be made to a private educational institution. Those clauses regulate recognition and not the conditions of service of the employees of that institution. On the contrary, Chap VIII enumerates the general conditions of service and it is clear that the provisions of that chapter are applicable only to private educational institutions which receive a grant-in-aid from Government.

21. The argument constructed before us that whether or not a private educational institution is the recipient of a grant-in-aid the service conditions of its employees are governed by the rues contained in Chap. VIII if it is a recognized educational institutions, cannot, in our opinion, be accepted. The recognition of the private educational institution to which rule 9 refers has no relevance to the provisions of Chap. VIII. The scheme of the Grant-in-aid Code more than abundantly displays that while departmental recognition is a condition precedent to a grant-in-aid, the service conditions enumerated in Chap. VIII become applicable only if it in fact receives a grant-in-aid and not otherwise.

22. While it is true that no grant-in-aid could be made to an educational institution which has not received departmental recognition, the mere departmental recognition of a private educational institution unless in consequence of such recognition a grant-in-aid is made to that educational institution does not attract the provisions of Chap. VIII of the Grant-in-aid Code. The scheme of the Grant-in-aid Code demonstrates that its main purpose is to confer powers of superintendence by Government and the authorities subordinate to it is respect of private educational institutions which are recipients of the grant-in-aid to which it refers and the purpose of Chap. III in which the only rule which is contained is it is rule 9 is to forbid the grant-in-aid to an institution which has not received recognition. So, it would be unreasonable for any one to suggest that a private educational institution which seeks recognition not for a grant-in-aid but for other purposes also becomes subject to the superintendence which the Grant-in-aid Code envisages.

23. We are, therefore, of the opinion that the service condition enumerated is Chap. VIII are applicable only to the private educational institutions which receive grant-in-aid and not to the other private educational institutions even if they receive departmental recognition. The argument to the contrary mistakes the purpose of Chap. III whose purpose is only to regulate the grant-in-aid.

24. So, the Baldwin Boys' High School which admittedly did not receive any grant-in-aid was at liberty to terminate the services of its teachers in accordance with the agreement entered into between its management and its teachers, and, if such termination has been made on a domestic enquiry conducted by a tribunal appointed by it, no appeal could be preferred against such termination to the Director of Public Instruction or to anyone else under rule 50(viii) of the Grant-in-aid Code.

25. But it was said that the Board of Governors submitted to the jurisdiction of the Director. It is not established that there was any such submission and even if there was, such submission could not clothe the Director with the appellate power which does not reside in him. So, the more fact that at one stage the Board of Governors made a request to the Director for the nomination of one of his officers to act on the committee of enquiry or the approval sought by that board to the order of suspension and the payment of subsistence allowance, cannot confer on the Director an appellate power which he did not possess.

26. We do not accede to the argument that the only remedy which the Board of Governors could pursue was to take a decision form the Director in the appeal and to challenge it in a further appeal to Government under Clause (xi) of rule 50. If a tribunal of inferior jurisdiction exercises a jurisdiction which it does not possess, the person who disputes its jurisdiction can not only raise the objection to jurisdiction before the tribunal but could also seek a writ of prohibition form this Court restraining it form continuing a proceeding which it had no jurisdiction to commence, and, that that is so, is a very familiar principle.

27. There is nothing in the judgment of this Court in the earlier writ petition which can preclude the Board of Governors from seeking a writ of prohibition which it asks us to issue in this case. The objection to the Director's jurisdiction was expressly raised during the argument in that writ petition and this Court allowed the Board of Governors to raise that question before the Director. If liberty to do so was reserved by the decision rendered by this Court, the Board of Governors was free to contest the Director's jurisdiction when the matter went back to him and to ask us to quash his order on that matter if it felt aggrieved by it, and, that is precisely what it has done in this writ petition.

28. So, we allow this writ petition and quash the order made by the Director by which he decided that he had jurisdiction to entertain and hear the appeal. We issue a writ of prohibition restraining him from proceeding with that incompetent appeal. No costs.


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