1. In this writ petition under Article 226 of the Constitution the petitioner prays that this Court may be pleased to:
(1) quash the letter No. DI. PR. 131 C 7135/63-64 dated 23-11-64, marked as annexure 'C' No. E9. 1610.33/62-3, dated 28-11-1964; marked as annexure 'E'; and the order No. E9.1610-33/62-63, marked as annexure 'L';
(2) issue a writ of mandamus directing respondents 1 and 2 not to interfere in the appointment of the Head Master, Tahik Board High School, Shiralkoppa; and
(3) issue such other writs or orders as deemed fit in the circumstances of the case.
2. The material facts of this case are: The petitioner is a B. A., B. Ed., of the Mysore University and joined service on 7-8-1950 as Assistant Master in the Municipal High School, Shiralkoppa. He worked in that High School for about 6 years and thereafter he was transferred to Bhadravati, where he worked till 1959 and then he was retransferred to the Municipal High School Shiralkoppa. Under the provisions of Section 95 of the Mysore Village Panchayats and Taluk Boards Act, a Tahik Board was established for the Taluk of Shikaripur. The Taluk Board of Shikaripur (3rd respondent) established a Girls High School at Shiralkoppa on 30-6-1963. The Taluk Board requested the Municipality to lend the services of the petitioner for being appointed as Head Master of that High School. The Municipality with the consent of the petitioner agreed to spare his services for a period of five years. The third respondent requested the Deputy Commissioner of Shimoga by its letter dated 12th July 1963 to spare the services of the petitioner to work as Head Master in the High School purely on temporary basis till permanent arrangements were made by the Director of Public Instruction. The Deputy Commissioner, by his letter dated 18th July 1968 permitted the petitioner to work as Head Master in the said High School purely on temporary basis and subject to ratification by the Director of Public Instruction. In pursuance of the order of the Deputy Commissioner, the petitioner was appointed as Head Master. In the meanwhile, on 29-10-63 the 3rd respondent passed a resolution resolving to continue the services of the petitioner us Head Master for a period of 5 years. But the action of the 3rd respondent was not approved by the Director of Public Instruction.
3. The Director of Public Instruction by his order dated 21-3-1964 posted one Nagaraj as the Head Muster, but the then President of the Taluk Board did not take Nagaraj to duty as the Board had decided to continue the services of the petitioner for five years on contract basis. The Director of Public Instruction wrote back to the President directing him to relieve the petitioner forthwith. In spite of this the President did not relieve him. The Deputy Commissioner also requested the President to relieve the petitioner forthwith as he had been posted to his original place. This matter came up before the Board on 5-8-64 I and the Board resolved to request the Deputy Commissioner to continue the services of the petitioner as Head Master and if the Deputy Commissioner did not agree for that request authorised the president to take suitable action in the matter
It appears, the President of the Board wrote to the Deputy Commissioner bringing to his notice the intention of the Board to continue the services of the petitioner. As the petitioner was not relieved by the Board, the Deputy Commissioner by his letter No Dr. PR. 131 C. 7185/64-65 dated 22nd August. 1964, requested the President again to relieve the petitioner forthwith. Thereafter, the Board wrote to the Director of Public Instruction requesting him to retain the petitioner as Head Master for a period of four years. The Executive Officer also wrote to the Director of Public Instruction about the action he had taken against the petitioner. On considering these matters, the D. P. I. issued the memo dated 28-11-64 containing amongst others, the following direction :
'The request of the Vice President of the Taluk Board, Shikaripur regarding retention of Sri K. S. Adam its Headmaster, Taluk Board High School, Shikaripur cm deputation basis cannot be considered under any circumstances.
4. From this memo it is clear that the D. P. I. rejected the request of the Board to retain the petitioner as Headmaster on deputation and confirmed the order of the Executive Officer relieving the petitioner of his duties. Further, he posted the 5th respondent cancelling the posting order of Nagaraj. It appears that the 5th respondent reported for duty on 26-11-1964. But the petitioner did not hand over charge, Then it appears that the Board at its meeting held on 31-12-1964 authorised the President to appoint the petitioner as Head Master of the School. In accordance with the directions of the Board, the President appointed the petitioner as the Head Master. The memo issued in this behalf by the President reads thus :
'No. TDB. 36/64-65.
Office of the President Taluk Board.
31st December 1964.
In exercise of the powers vested to me by the Taluk Development Board, Shikaripur at its meeting held on 31-12-1964 and also in accordance with the Government Order No. PLM 216: TET 64 dated 10-12-64, I hereby appoint Sri K. S. Adam, B.A., B.Ed., at the Head Master of the Taluk Board Girls High School, Shiralkoppa.
Sd/- Shivana Gowda,
Taluk Board, Shikaripur.'
5. The grievance of the petitioner is that the Director of Public Instruction has no power to appoint or transfer the Head Master of a Taluk Board High School. According to him it is one of the functions of the Taluk Board to establish and run institutions imparting primary and secondary education. The Board is entitled to appoint committees and invest such committees with necessary powers for carrying out the said purpose. The Board has constituted a committee known as the High School Managing Committee and therefore it is only that committee and the president of the Taluk Board that are entitled to manage the institution. That being so, the order of the D.P.I. posting the 5th respondent as the Head Master of the School in question and relieving him of his duties is without competence.
6. In order to answer the contentions raised, it becomes necessary to examine the relevant provisions contained in the Mysore Village Panchayats and Local Boards Act, 1959 (Mysore Act No. 10 of 1959), to be hereinafter referred to as the 'Act'.
7. Section 119 of the Act mentions the officers of the Board The Tahsildar of the Taluk shall be the executive Officer. Sections 121 and 127 relate to formation of committees by the Board. Section 128 relates to procedure of committees. The Chief Executive Officer shall attend the meeting of every committee and shall he entitled to take part in discussions but shall not be entitled to vote or move any motion. It is also provided under this section that any officer of Government connected with the work of the Taluk Board may with the consent of the Board, attend any meeting of the Taluk Board or of any committee thereof, and address such Board or Committee on any matter under discussion affecting his department and shall furnish hit advice in such matters whenever desired by the Board or the Committee.
8. Section 131 (a) provides that the Taluk Board may contribute towards the establishment and running of institutions imparting primary and secondary education. Section 137 confers general powers on the Board. Under this section it is provided that subject to the provisions of the Act and the rules made thereunder and the provisions of any other law for the time being in force a Taluk Board shall have power to do all acts necessary or incidental to the carrying out of the duties entrusted to it under Section 130 and 131.
9. Section 196 provides that the Commissioner shall subject to the control and orders of the Government, be the chief controlling authority in respect of all matters relating to the administration of the Act. Section 197 deals with delegation of its powers under the Act except the power to issue notifications under Chapter XI or to make rules under Section 210 or orders under Section 245.
10. Section 198 provides :
'(1) The Commissioner, Deputy Commissioner or any Officer of Government authorised by a general or special order of the Government may
(a) enter on and inspect any immoveable property occupied by any Panchayat or Taluk Board or any institution under its control and management, or any work in progress under it or under its direction, or cause such immoveable property, institution, or work to be entered upon and inspected by any other officer authorised by him in this behalf in writing; and
(b) call for any extract from the proceedings of any Panchayat or Taluk Board or any committee appointed by such Panchayat or Board, and call for or inspect any book or document in the possession of or under the control of a Panchayat or Taluk Board.
(2) The Commissioner or the Deputy Commissioner may--
(a) call for any return, statement, account or report from a Panchayat or Taluk Board; and
(b) require a Panchayat or Taluk Board to take into consideration--
(i) any objection which appears to him to exist to the doing of anything which is about to be done by such Panchayat or Taluk Board; or
(ii) any information furnished by him which appears to him necessitate the doing of a certain thing by such Panchayat or Taluk Board;
'and to make a written reply to him within a reasonable time stating its reasons for not desisting from doing or for not doing, such thing.' Section 210 provides:
'(1) The Government may by notification and after previous publication make rules to carry out all or any of the purposes of this Act and prescribe forms for any proceeding for which it considers that a form should be provided.
(2) In particular and without prejudice to the generality of the foregoing power, it shall have power to make rules, --
* * * * * * * * *(j) in respect of the mode in which the officers of the Government shall advise and assist Taluk Boards in carrying out the purposes of this Act;
(k) in respect of the recruitment of officers and servants and their qualifications and with regard to control, transfer, punishment or dismissal of officers and servants of Panchayats and Taluk Boards and with regard to the pay, leave, and other privileges of such employees;
l) for the guidance generally of Panchayats, Taluk Boards, Committees, and Government officers in all matters connected with the administration of this Act and not herein specifically provided for;* * * * * * * * *
11. Section 221 provides :--
'(1) Notwithstanding anything contained in any law for the time being in force, such posts under any local authority as may be specified by the Government shall be filled by appointment of officers belonging to the Mysore Local Government Service.
(2) A Taluk Board may if it deems necessary, by a resolution passed by two-thirds of the total number of members of the Board recommend to the commissioner the taking of such disciplinary action as may be necessary against any officer belonging to the said service in respect of any misconduct by him while in the service of the Board.'
The last section that is relevant for the purpose of this case is Section 242. Section 242(1) repeals and saves certain Acts, of which the Mysore Village Panchayats and District Boards Act, 1952 (Mysore Act IV of 1952) is one. The 2nd proviso to Sub-section (1) provides:
'(a) subject to the preceding proviso, anything done or any action taken (including any appointment or delegation made, tax, fee or cess imposed, notification, order instrument or direction issued, rule, regulation, form byelaw or scheme framed, certificate obtained, permit or licence granted or registration effected) under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act:
'(b) every officer or servant in the employ of a District Board immediately before the date of commencement of this Act shall be absorbed in the service of a Taluk Board or of the Government, as may be determined by the Government, and shall, until other provision is made, receive the salaries and allowances and be subject to the conditions of service to which he was entitled or subject on such date.'
12. An examination of these provisions shows that it is one of the discretionary functions of the Taluk Board to contribute towards the establishment and running of institutions imparting primary and secondary education. For that the Taluk Board is entitled to appoint committees and invest each such committee with necessary powers for carrying out the said purpose. Subject to the provisions of the Act ana the Rules made thereunder and the provisions of any such law for the time being in force, a Taluk Board has power to do all the acts necessary or incidental to carry out the duties entrusted to it under Sections 130 and 181. Every Taluk Board is entitled to employ such officers and servants as may be necessary for the discharge of its duties. The officers and servants employed by the Taluk Board are subordinate to and subject to the disciplinary control of the Chief Executive Officer. The Commissioner, subject to the control and orders of the Government is the chief controlling authority in respect of all mutters relating to the administration of the Act.
The Government is empowered to make rules to carry out all or any of the purposes of the Act and prescribe forms for any proceedings for which it considers a form is necessary. In respect of recruitment of officers and servants and their qualifications and with regard to control, transfer, punishment or dismissal of officers and servants of Taluk Boards and with regard to pay, leave, and other privileges of such employees, the Government is authorised to make rules. For the said purpose, the Government has framed rules called the Mysore Panchayats and Taluk Boards Employees (Recruitment and Conditions of service) Rules, 1962 in exercise of the powers conferred on them under Section 210 of the Act. Rule 3 of the above Rules provides :--
'(1) The Mysore Public Service Commission (Conduct of Business and Additional Functions) Act 1959 and Rules and Orders made thereunder shall bf followed for the recruitment to posts under Panchayat or Taluk Board, as the case may be, when consultation with the Public Service Commission for such recruitment is necessary under the said Act.
(2) * * * * * * * * *(3) Where the recruitment is not done under Sub-rule (i) or (ii) or by promotion under Rule 7, the recruitment shall be made through the local Employment Exchange notified by Government in the Official Gazette as having jurisdiction over the area of the Panchayat or the Taluk Board, as the case may be, under the Employment Exchanges (Compulsory Notification or Vacancies) Rules, 1960.'
Rule 4 specifies the age and other qualifications of persons eligible for appointment to the services of the Taluk Board. Rule 10 provides that under the Taluk Board, the Chief Executive officer shall be the appointing authority for posts carrying a maximum pay upto Rupees 100/- per month and the Taluk Board shall be the appointing authority in respect of other posts.
13. An examination of these rules shows that the Executive Officer is the appointing authority for posts carrying a pay upto Rs. 100/-per month and the Taluk Board is the appointing authority in respect of other posts. These appointments have got to be made as per the Mysore Public Service Commission (Conduct of Business and Additional Functions) Act, 1959 and Rides and Orders made thereunder. The scheme of the Act and the Rules made thereunder do not authorise the D. P. I. to make appointments to educational institutions run by the Taluk Board.
14. The contention of the first respondent it that the appointments, promotions, confirmations and transfers of teachers to the defunct District Board High Schools were governed by the rules issued by the D. P. I. and approved by the Government in their order No. LB 7838-58-LB-69-49-2 dated 21-10-1950. The service conditions of the defunct District Board High Schools are protected under Section 242 (a) and (b) of the Act. According to the first respondent, a seniority list of teachers working in the defunct District Boards now handed over to the Taluk Development Boards was maintained and promotions of Headmasters are ordered by the D. P. I. as per the seniority list. In the case of High Schools newly started by the Taluk Boards, the appointments of teachers have to be made by the Taluk Development Board barring that of Head Masters as per Government order No. DPC 137 BDB 64 dated 3-12-196-1 issued by the Government in the Department of Director of Public Instruction. As per the order of the Government and the practice in vogue the D. P. I. is competent to appoint the 5th respondent as the Head Master of the High School in question and that the same cannot be questioned by the petitioner.
15. The stand taken by the third respondent is more or less the same as the first respondent. Appointments, promotions, confirmations and transfers of feathers of the defunct District Board High Schools were being governed by the rules issued by the D. P. I. which had been approved by the Government in 1950. According to those rules all the District Board High Schools in the erstwhile State of Mysore formed one separate unit for purposes of promotions and transfers. Appointments in the grade of Rs. 60-5-90/EB-6-150 and below were made by the Managing Committee of the concerned District Boards in accordance with the recruitment rules. The Deputy Commissioner of the District concerned was the Unit Officer.
Promotions to higher grade on Rs. 130-10-200 were being made by the D. P. I. on the basis of the consolidated seniority list of teachers working in all the District Board High Schools, which was prepared by the D. P. I. according to service and pay. Promotions to the grade on Rs. 170-10-250 were being made with the approval of the Government. Confirmations of all appointments made in the posts of Head Masters in the District Board High Schools in grade of Rs. 130-10-200 were being made by the D. P. I. and those in grade of Rs. 170-10-250 with the approval of the Government. The Managing Committees were empowered to fill up the other posts of staff of their schools. The D. P- I. was the authority for effecting transfers of teachers from one District Board High School to another. In the case of periodical transfer from one High School to another, previous intimation thereof was being sent to the Managing Committee concerned.
16. The rules relied upon by respondents 1 and 3 were not rules framed under the 1952 Act. Even according to the first respondent, those rules were circular instructions issued by the D. P. I. approved by the Government. These rules are not saved by Clause (a) to second proviso of Section 242 of the Act. By Clause (B) thereto, every officer or servant in the employ of a District Board immediately before the dale of commencement of the Act became entitled to be absorbed in the service of a Taluk Board or of the Government as may be determined by the Government and shall until other provision is made receive the salaries and allowances and subject to the conditions of service to which he was entitled or subject on such dale. The 5th respondent was not absorbed in the service of the Taluk Board of Shikaripur after the Acf came into force. Rules relating to recruitment to the, posts under the Taluk Board have now been framed.
As per these rules the Executive Officer of the Taluk Board in some cases and in other respects the Taluk Board itself are the authorities to make appointments to the posts in the service of the Taluk Board. In the scheme of the Act the D. P. I. has no authority to make appointments to any of the posts existing under the Taluk Board. The D. P. I. was not competent to post the 5th respondent as Head Master of the Board High School, much less had he any authority to revert the petitioner from the post of Head Master, to which he had been appointed by the Board. The Executive Officer also had no authority to relieve the petitioner acting under the orders of the D. P. F. The Taluk Board, which had appointed the petitioner as Head Master, itself is the authority to continue him in service or to remove him. Therefore, we are unable to agree with the contentions of respondents 1, 2 and 5 that the D. P. I. had power to transfer the 5th respondent to the Board High School us Head Master and relieve the petitioner.
17. We might mention at this stage that reliance was placed for respondents 1, 2 and 5 on certain provisions contained in the Grant-in Aid Code for Secondary Schools in Mysore State as conferring power on the D. P. I. to effect the transfer. Apart from the fact that they have no application to the Taluk Board Schools, they are inconsistent with the provisions of the Act in that, D. P. T, as observed above, has no authority under the scheme of the Act to make appointments to any of the posts under the Taluk Board. Besides, as laid down by the Supreme Court in State of Assam v. Ajit Kumar Sarma, : (1966)ILLJ451SC , instructions contained in Grant-in-Aid Code are mere executive instructions and have not the force of statutory rules.
In the decision cited above, the facts were that one Ajit Kumar Sarma was a teacher in the Handique Girls College at Gauhati a private College affiliated to the Gauhati University. He was first granted 'leave' to contest at the election for a Parliamentary seat and subsequently permitted to join his duties as he was defeated. On being informed of this action of the Governing Body, the Director disapproved the action and pointed out that it was in contravention of Rule 7 of the Rules regarding the Conduct and Discipline of the Employees of the Aided Educational Institutions. The Governing Body then reconsidered the position and informed the petitioner that the leave granted to him would be treated as 'compulsory leave without pay'.
He thereupon filed a writ petition in tbe High Court contending that the rules to which the Director had made reference had not statutory force, that the Director had no authority to interfere with the resolution of the Governing Body and that resolutions of the character passed by a Governing Body did not require the approval of the Director and would have effect By themselves. The High Court came to the conclusion that the rules had no statutory force and directed the Governing Body to give effect to the letter of the Director. Aggrieved by this decision, the State and the Director applied to the Supreme Court for special leave, which was granted. The Supreme Court held:
'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 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 if 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 of 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.'
18. The legal position that emerges from this decision is that even if the instructions contained in Grant-in-Aid Code, were binding upon respondents 3 and 4, yet they have not chosen to modify their contract with the petitioner and revise the order of his appointment. The D. P. I. has, therefore, no power to set aside the order of appointment of the petitioner as the petitioner continues to hold that post so long aS respondent 3 chooses to continue him under the terms of the resolution passed by the Board and the order of appointment issued as a con-sequence thereof, ft is for the Board either to accept the instructions issued by the D. P. I. or not to accept them. The Board having not accepted the same, the order passed by the D. P. I. and the memo issued by the Executive Officer in pursuance thereof have no effect. 'Therefore, the impugned orders are liable to be quashed.
19. Since the petitioner has been relieved of his duties at Head Master by respondent 5 pending this petition, it is necessary to direct the latter to deliver charge of the office of the Head Master to the petitioner; this follows as a consequence of our decision to quash the impugned orders.
20. In the result, the orders impugned are quashed and Respondent 5 is directed to hand over charge to the petitioner of the office of the Head Master of the High School concerned forthwith. No costs.
21. Petition allowed.