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Shankuntala Sahawala Vs. the Director of Public Instruction Ii, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. No. 2162 of 1975
Judge
Reported inAIR1977AP381; (1978)ILLJ160AP
ActsConstitution of India - Article 226; Co-operative Societies Act; Companies Act; Non-Trading Societies Registration Act
AppellantShankuntala Sahawala
RespondentThe Director of Public Instruction Ii, Hyderabad and ors.
Appellant AdvocateL.P. Sahagal, Adv.
Respondent AdvocateGovernment Pleader for Education, ;C.N. Babu and ;M.Y.K. Rayudu, Advs.
Excerpt:
.....managing aided institution in matter of promotion to post of principal - society not governed by statutory rules - held, society not amenable to writ jurisdiction of high court. - - she also contended that she possesses better qualifications as compared to the 3rd respondent particularly as regards the teaching of hindi. sahgal for the petitioner contended that even though there may not be any enforceable right, a writ of certiorari could be issued against a society like the second respondent, because the full bench of this court in harijander singh's case air1975ap35 (fb) (supra) drew a distinction between a writ of mandamus and a writ of certiorari. it is well settled that if the relief under the specific relief act of declaration and injunction cannot be granted in a particular..........to above it is clear that even if the educational institution is considered to be a public body, no writ or direction can be issued so long as the private institution is not governed by statutory rules and there is no question of any enforcement of statutory rules. however, as against a government servant, who is functioning under administrative orders or administrative instructions, a writ can issue if there is violation of principles of natural justice or if the administrative instructions, which are binding on him have not been followed by him. the high court, in exercise of its jurisdiction under article. 226 of the constitution, can always direct a public servant to abide by the rule of law and the administrative instructions binding on him are part of the rules of law. it.....
Judgment:

B.J. Divan, C.J.

1. This matter has come before us on a reference made by our learned brother, Madhava Reddy, J. He felt that the earlier Full Bench decision of this High Court in Harijander Singh v. Kakatiya Medical College, Warrangal, : AIR1975AP35 (FB) is affected by the decision of the Supreme Court in Vaish Degree College v. Lakshmi Narain, AIR 1976 SC 888 and that the decision of the Full Bench of this Court in Harijander Singh's case : AIR1975AP35 (FB) requires reconsideration. He, therefore, referred the whole matter to the Full Bench.

2. The matter arises under the following circumstances. The petitioner herein is the seniormost Assistant in the school conducted by the second respondent-society. The second respondent-society was registered under the Hyderabad Non-trading Societies Registration Act, which is still in force. The first respondent is the Director of Public Instruction II. Hyderabad and the 3rd respondent is another Assistant in the school conducted by the second respondent-society. The grievance of the petitioner is that though she is the seniormost Assistant in the school and is duly qualified for the post, overlooking her seniority, the 3rd respondent, who is her junior by several years, has been appointed as the principal. The second respondent-society is running this school with the aid received under the Grant-in-aid Code from the State Government. It is common ground that the Andhra Pradesh Education Code is not under any statute, but is only by virtue of administrative instructions issued by the Government from time to time. It is also common ground that, since April 1973, the 3rd respondent was working as the Vice-Principal. There is no dispute about the fact that the 3rd respondent is junior to the petitioner in service. It is the contention of the second respondent-society that seniority in service is not the sole criterion for appointment to the post of Principal of the school and that the petitioner cannot claim that post as of right. Under the administrative orders issued from time to time by the Government an appeal lay to the first respondent and the first respondent heard the appeal against the decision of the second respondent-society and that appeal was dismissed and thereafter the present writ petition came to be filed.

3. It was the contention of the petitioner that, under the administrative instructions in the form of G. Os. issued from time to time by the Government, she had a right to be appointed to the post of Principal and hence her case should have been considered and the administrative instructions should not have been overlooked. She also contended that she possesses better qualifications as compared to the 3rd respondent particularly as regards the teaching of Hindi.

4. As we have already observed, the two questions, which our learned brother, Madhava Reddy J. has dealt with in his order of reference, are (1) Whether a writ can be issued against a registered society managing an aided institution in the matter of promotion to the post of Principal; (2) whether the post of Principal has to be filled by the seniormost Assistant in the school and such seniormost Assistant can, as of right, claim to be appointed to that post. As regards the position of members of the teaching staff serving in aided educational institutions receiving grant-in-aid from the State Government, there are two decisions of the Supreme Court. The first of these decisions is State of Assam v. Ajit Kumar Sarma, : (1966)ILLJ451SC . In that case, the Supreme Court laid down :

'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 these 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.'

'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 or non-enforcement of the Rules, even of 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.'

Similar is the effect of the decision of the Supreme Court in Regina v. St. A. H. E. School, : AIR1971SC1920 . It was held by the Supreme Court in that case that the enforcement of 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. It is worthwhile to note that, in that particular case before the Supreme Court, the matter arose out of a suit filed by a teacher, because the school management refused to carry out the directions given to it by the Education Department. In that case, the Headmistress was reduced to the rank of Assistant teacher and the Department had passed an order setting aside the order of management reducing therefrom the rank of Headmistress to that of Assistant Teacher and on these facts, the Supreme Court held that the teacher had no right which could be enforced in a Court of law. Shelat, J., delivering the judgment of the Supreme Court, pointed out at page 1922 of the report:-

'Ordinarily, the relations between the management of an elementary school and the teachers employed in its would be governed by the terms of the contract of employment and the law of master and servant in the absence of any statute controlling or abrogating such a contract of employment and providing to the contrary. The mere fact that such a school has obtained recognition and aid from the Education Department would not mean that the relationship between its management and its employees thus ceased to be governed by the contracts of employment under which the employees are recruited and by the law of master and servant unless there is some provision in the Act overriding that law as one finds in statutes dealing with industrial disputes and similar other matters.'

The Supreme Court has pointed out:-

'The management of a school, therefore would commit a breach or non-compliance of the conditions laid down in the rules on pain of deprivation or recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these rules upon the management. But the enforcement of such rules is a matter between the Government and the management, and a third party, such as a teacher aggrieved by same 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.'

5. It may also be pointed out that the Supreme Court, in Regina v. St. A. H. E. School : AIR1971SC1920 (supra) approved of the decision of a Division Bench of this Court in Moss v. Management of St. Patricks High Court, Secunderabad, (1970) 2 Andh WR 157, where it was held that the rules relating to recognition and aid are not statutory rules but are only executive instructions and, therefore are not legally enforceable in a Court of law. In view of these two decisions of the Supreme Court and the decision of the Division Bench of this Court in Moss v. Management of St. Patricks High School, Secunderabad, (1970) 2 Andh WR 157 which was approved by the Supreme Court, Mr. Sahgal for the petitioner contended that even though there may not be any enforceable right, a writ of certiorari could be issued against a society like the second respondent, because the Full Bench of this Court in Harijander Singh's case : AIR1975AP35 (FB) (supra) drew a distinction between a writ of mandamus and a writ of certiorari. There the Full Bench held that in an appropriate case a writ of certiorari can issue against a private college although it is not a statutory body. The Full Bench made out a distinction between a public body and a statutory body and it held that a writ can issue against a non-statutory body it is violates administrative or executive directions or instructions or acts in violation of principles of natural justice. As against this decision of the Full Bench of this Court, subsequently there have been two decisions of the Supreme Court one is the decision in Vaish Degree College v. Lakshmi Narain (AIR 1976 SC 888) (supra) where it was held that the Executive Committee of a Degree College which is registered under the Registration of Co-operative Societies Act and is affiliated to the Agra University is not a statutory body. It was held that, if any action was taken against the Principal of such a College without the approval of the Voce-Chancellor as required by the provisions of the statute enacted by the Legislature, the case did not fall within any of the exceptions to the rule of non-enforceability of contract of service and hence the plaintiff in that case was not entitled to any declaration or injunction. It is well settled that if the relief under the Specific Relief Act of declaration and injunction cannot be granted in a particular case because of certain legal principles, much less can a writ of mandamus be issued against such an institution. In view of this decision in Vaish Degree College v. Lakshmi Narain (supra). It is clear that the second respondent -society is not a statutory body. But the question still remains whether it is a public body against which a writ of certiorari can issue. The distinction, which was drawn by Ekbote, C. J. in the Full Bench decision in Harijander Singh v. Kakatiya Medical College (supra) between a statutory body and a public body, was followed by a Division Bench of this Court in Osmania College, Kurnool v. D. V. Subbasastry, (1977) 1 Andh WR 187. There the Division Bench consisting of Sambasiva Rao and Madhusudan Rao, JJ. held that since the Osmania College, Kurnool, was a public body though not a statutory body, the Writ Petition was maintainable. The Division Bench followed the decision of the Full Bench in Harijander Singh's case (supra). Apart from the decision in Vaish Degree College v. Lakshmi Narain (supra) there is a subsequent decision of the Supreme Court in Arya Vidya Sabha, Kashi v. K. K. Srivastava, : (1976)IILLJ95SC , where it was held following the majority decision in Vaish Degree College v. Lakshmi Narain (supra) that an institution affiliated to the Banaras Hindu University is not a creature of statute but an entity like a company or a co-operative society or other body which has been created under the operation of a statute and the Court cannot order reinstatement of a servant who has been dismissed by the College authorities. The main point which has to be borne in mind is that, the distinction between the statutory and public bodies is not borne out by any of the Supreme Court decisions. That is the distinction which has been drawn only by Ekbote, C. J., in the Full Bench decision in Harijander Singh's case (supra).

6. The question still arises whether a writ of certiorari can issue against an institution which is not a statutory body, which is accepted by the Supreme Court in Vaish Degree College v. Lakshmi Narain (AIR 1976 SC 888) (supra) and Arya Vidya Sabha Kashi v. K. K. Srivastava : (1976)IILLJ95SC (supra) as any institution on the same footing as a company and whether such body can be considered to be a public body against whom a writ of certiorari can issue, because of non-compliance of the provisions of the Grant-in-Aid Code or conditions of affiliation by the management of such an institution. In view of the observations of the Supreme Court in those two decisions, we must hold that the distinction between a statutory body and a public body cannot be sustained. The Supreme Court decisions can only be read to mean that no relief can be granted as against an institution of this kind. It is clear that such a co-operative society or a company is not a public authority within the meaning of Article. 12 of the Constitution and the rules in the instant case viz. the rules under the Grant-in-Aid Code are not statutory rules. In the absence of any such statutory rules can it be said that a society receiving grants-in-aid is amenable to the writ jurisdiction of the High Court under Article. 226 of the Constitution?

7. It is possible to draw a distinction where some statutory rules in one form or another are involved and it is complained that there is a breach of such statutory rules, but that is not the case before us. If administrative instructions have been issued by the Government for giving grant-in-aid and for recognition, such administrative instructions do not confer any right on any member of the teaching staff. That principle is well settled. The breach, if any, of such administrative instructions can be dealt with only by the Government by withholding the grant-in-aid or withdrawing recognition, as the case may be; but the teacher or person affected by the violation of these administrative instructions cannot enforce his rights either by way of suit for declaration or injunction or by way of writ petition.

8. In State of Assam v. Ajit Kumar Sarma, : (1966)ILLJ451SC Wanchoo, J., (as he then was) speaking for the Supreme Court, has pointed out at page. 1200 of the report:

'If however having accepted the instructions containing the conditions and terms, the college does not carry out the instructions, the Government will naturally have the right to withhold the grant-in-aid. That is however a matter between the Government and the private college concerned. Such conditions and instructions as to grant-in-aid confer no right on the teachers of the private college and they cannot ask that either a particular instruction or condition should be enforced or should not be enforced. 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 rules having statutory force, and it will then be naturally open to the State to consider what grant to make.'

9. In view of the above observations of the Supreme Court, it is clear that, in respect of private colleges receiving grant-in-aid, no rights can be enforced by the members of the teaching staff. In the instant case, all that the petitioner is complaining of is that the particular administrative instruction, has not been carried out and in violation of that administrative instruction, her junior was appointed as the Principal of the school.

10. The learned Government Pleader, Mr. Sastry, has pointed out that, though, by an earlier circular issued by the Government of Andhra Pradesh, Education (G) Department, on August 12, 1969, being Memorandum No. 88 G1/69-4 Edn. the Government had provided that the seniormost among the B. Ed. Assistants possessing the qualifications prescribed and working under the same management, if available should be preferred in filling up the post of Headmistress, that memorandum of August 12, 1969 was superseded and cancelled by another memorandum bearing No. 248/G1/71-1, Education, dated March 17, 1971. The memorandum of March 17, 1971 specifically says that the orders issued in the Government Memorandum of August 12, 1969 were cancelled and in the new memorandum it was provided that:

'The Government direct that in the absence of a qualified candidate for appointment as H. M. of a secondary school of either a A. P., M. C. or aided management the seniormost among the B. Ed., assistants working under the concerned management may be appointed as a H. M. on a temporary basis subject to the following conditions.'

11. It may be pointed that the memorandum of August 12, 1969 and the memorandum of March 17, 1971 were issued only in connection with the appointment of a Headmaster when a fully qualified person as required by the rules was not available. Under these circumstances, there is no substance in the contention of Mr. Sahagal that the first respondent overlooked the administrative instructions when the appeal filed by the petitioner against the decision of the management was rejected.

12. It is true, as has been held by the Supreme Court that even an administrative order can be enforced if the Government servant acts or proposes to act in violation of the administrative order.

13. In Union of India v. K. P. Joseph, : [1973]2SCR752 , it was held by the Supreme Court:

'To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that Courts have imported the principle of natural justice of audi alteram partem into this area.'

14. In the instant case, it must be pointed out that the provision of the Andhra Pradesh Recognised Private Educational Institution (Control) Act, being Andhra Pradesh Act No. XI of 1975 cannot apply, because the dispute regarding the appointment of Headmistress of the school run by the second respondent society arise much prior to the coming into force of this Act. The Supreme Court has also held in State of Maharashtra v. Lok Shikshan Sansatha, : AIR1973SC588 that the provisions of the Grand-in-Aid Code are executive instructions and are in the nature of administrative instructions without any constitutional force.

15. In view of the decisions of the Supreme Court referred to above it is clear that even if the educational institution is considered to be a public body, no writ or direction can be issued so long as the private institution is not governed by statutory rules and there is no question of any enforcement of statutory rules. However, as against a Government servant, who is functioning under administrative orders or administrative instructions, a writ can issue if there is violation of principles of natural justice or if the administrative instructions, which are binding on him have not been followed by him. The High Court, in exercise of its jurisdiction under Article. 226 of the Constitution, can always direct a public servant to abide by the rule of law and the administrative instructions binding on him are part of the rules of law. It is only to the limited extent that the High Court can exercise its writ jurisdiction under Article. 226 of the Constitution in matters of this kind. We are constrained to hold, in view of the decisions of the Supreme Court referred to above that even on the basis of the distinction between a statutory body and a public body, that a private institution, like the second respondent, registered under the Co-operative Societies Act or the Companies Act or Non-Trading Societies Registration Act, is a public body, it is not open to the High Court to issue a writ or direction against such a body for breach of any administrative or executive instructions.

16. In view of these conclusions, it follows that the writ petition must be dismissed, since there is no breach of any administrative instructions committed by the first respondent, and the second respondent is not amenable to the writ jurisdiction of this High Court.

17. The writ petition is accordingly dismissed. There will be no order as to costs. Advocate's fee Rs. 150.


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