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Vasudevan Namboodiri and anr. Vs. Sarojini Amma and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1968)ILLJ404Ker
AppellantVasudevan Namboodiri and anr.
RespondentSarojini Amma and anr.
Cases ReferredJudge. In Bhavani v. Bhanu
Excerpt:
- - the question to decide is whether their claims against the managers is well-founded. the question to consider is, whether in the event that has followed since their appointment, that is, the appointment having failed to secure the approval of the educational officer, the respondents can have a valid claim for salary against the managers who appointed them. 1 which is in conformity with it, shows clearly that; into it, no condition can be read, as was attempted for the respondents, that in the event of failure to secure approval, the manager shall personally remunerate the teacher. the argument of learned counsel for the respondents based on section 70 is not well-founded. scheme to be good against the manager when the appointment failed to secure th approval of the department......learned judge. in bhavani v. bhanu 1969 k.l.t. 1008 sri p.t. raman nayar, j., held the chain of a teacher appointed under the p.s.s. scheme to be good against the manager when the appointment failed to secure th approval of the department. as pointed out by vaidialingam. j., the provisions of the act and the rules are different from those of the p.s.s. scheme. under the p.s.s. scheme, the collections by way of fees are to be made by the manager, he can reserve 20 par cent of the conditions and the balance 80 per cent to be paid over to the government, and government makes a grant to the manager out of which the manager is to pay the salary of his employees yees. the duty is always cast on the manager to pay the salary. the learned judge observed:the teachers are appointed by the.....
Judgment:
ORDER

S. Velu Pillai, J.

1. Civil Revision Petition No. 234 of 1966 is directed against the decree of the Subordinate Judge passed in appeal allowing the claim of the respondent against the revision petitioner there in, the manager of an aided school, for arrears of salary for the period she worked as a teacher, end Civil Revision Petition No. 167 of 1866 is directed against the decree passed by the Additional Mansif in a small cause suit allowing the claim of the respondent against the revision petitioner therein, who is the manager of another aided school, fur arrears of salary for the period that he worked as a teacher in that school. Though arising between different parties, the civil revision petitions raise a common question and are being disposed of by this common judgment.

2. The respondents in these petitions were appointed as teachers in the respective schools by the respective managers, the revision petitions. The appointment was under the provisions of the Kerala Education Act, 1958, to be referred to as the Act, and the rules framed under it but eventually their appointment was not approved by the Educational Officer, with the result that they were ultimately thrown out of employment and their salary was not paid to them by Government Their claim for each salary having been decreed against the respective manager, they have preferred these revision petitions. The question to decide is whether their claims against the managers is well-founded.

3. It was contended on behalf of the managers, that the appointment having been made in accordance with the Act and the rules, the respondents can have to claim against the manager for their salary oven though their appointment has not been approved by the Educational Officer. The relevant provisions of the Act and the rules have to be borne in mind. Section 9, Sub-section (1), of the Act reads:

The Government shall pay the salary of all teachers in aided schools direct or through the headmaster of the school,

Section 11 enacts

Subject to the rules and conditions laid down by the Government, teachers of aided schools shall be appointed by the managers of such schools from among persons who possess the qualifications prescribed under Section 10,

and Section 12(1) is in these terms;

The conditions of service of teachers in aided schools, including conditions relating to pay, pension, provident fund, issuance and age of retirement, shall be such as may be prescribed by the Government.

Rule 13 of Chap. XII provides that

the tuition fees Including fines and admission fees realized from the Government and aided schools shall be or edited to the Government.

Rule 7 of Chap. XIV. (A) is important and reads:

As soon as a teacher is appointed in a school, the manager shall immediately issue an appointment order to the teacher in form 27 and the appointment shall be effective from the date on which the teacher is admitted to duty, provided the appointment is duly approved.

Form 27 as prescribed is as follows:

Appointment order

Station

Date

Sri (name and address of teacher)is appointed as a permanent probationary/acting/temporary teacher under this

management on a pay of Rs. permanse in the scale of Rs.. and isposted as (designation) in the(name of school) fromto in the vacancy ofwho hasThis appointment is subject to the provisions of the Kerala Education Act and the rules thereunder and such other rules, orders issued from time to time by the Government or other competent authority. Signature of managerSignature of teacherThe appointment is approved.Signature and designation ofEducational Officer.

4. This is the rule as amended by two notifications dated 13 September 1660 and 20 February 1962. It was agreed that at the material time when the respondents were appointed, form 27 formed part of the rule itself. Rule 8 of Chap. XIV (A) contemplates that three copies of the appointment order, all signed by the manager and the teacher, shall be forwarded by the manager to the Educational Officer for approval together with details and particulars as prescribed, and after approval, one of these couples shall be retained by the Educational Officer, one copy forwarded by him to the teacher through the manager and the third copy forwarded to the manager to be filed in the school records.

5. Exhibit D. 1, dated 8 April 1961, is the order of appointment of the respondent in Civil Revision Petition No. 234 of 1966, and it is common ground that her appointment was not approved. in Civil Revision Petition No. 167 of 1966 though the order of appointment is not in evidence, it is common ground that the appointment was in purported pursuance of the provisions of the Act and the rules and that that appointment also was not approved. The question to consider is, whether in the event that has followed since their appointment, that is, the appointment having failed to secure the approval of the Educational Officer, the respondents can have a valid claim for salary against the managers who appointed them. A conspectus of the relevant provisions of the Act and the rules shows that the power of the manager, be far an it is relevant to the controversy, is to make the appointment, and the duty to pay the salary on the appointment being approved is of the Government. Unlike as under the P.S.S. Scheme which preceded the Act, the entire collection from an aided school by way of fees, etc., is to be collected by the head master and made over to Government, for paying the salary of the employees, the manager being allowed only a grant, celled maintenance grant, subject to certain conditions. A perusal of form 7 extracted above and of Ex. D. 1 which is in conformity with it, shows clearly that; the manager only appointed the teacher and sought approval of the appointment by forwarding the order of appointment. By this both parties, the manager and the teacher, who have affixed their signatures to the order of appointment in form 27, must be held to have agreed, that the manager make the appointment subject to the condition that the teacher shall look to Government and Government alone for salary, and that such salary would be payable only in the event of the appointment being approved. Into it, no condition can be read, as was attempted for the respondents, that in the event of failure to secure approval, the manager shall personally remunerate the teacher. The provisions of the Act and the rules relating to the payment and disbursement of salary are self-contained and allow no room whatever for any claim being made against the manager. It is only legitimate and reasonable to into that the appointment being ostensibly under the provisions of the Act and the rules, it was agreed by the teacher that under no conceivable circumstances, would the manager be made responsible for the payment of salary.

6. This, being as we take it, the correct interpretation of the order of appointment made under the Act and the rules, there is no scopes for the application of the doctrine in Section 70 of the Indian Contract Act, because in the firs place, it is an implied term of the contract between the parties, that no claim would be advanced against the manager for services rendered as a teacher, in the hope that, the appointment would be approved by the department, and in the second place so far at least as the manager was concerned, it is not possible to hold that the teacher's were not gratuitous. The argument of learned counsel for the respondents based on Section 70 is not well-founded.

7. In a similar case, Civil Revision Petition No. 807 of 1864, Vaidialingam, J., held that under the Act and the rules, no such claim can be maintained against the manager. Speaking with respect, we are in entire agreement with the view taken by the learned Judge. In Bhavani v. Bhanu 1969 K.L.T. 1008 Sri P.T. Raman Nayar, J., held the chain of a teacher appointed under the P.S.S. Scheme to be good against the manager when the appointment failed to secure th approval of the department. As pointed out by Vaidialingam. J., the provisions of the Act and the rules are different from those of the P.S.S. Scheme. Under the P.S.S. Scheme, the collections by way of fees are to be made by the manager, he can reserve 20 par cent of the conditions and the balance 80 per cent to be paid over to the Government, and Government makes a grant to the manager out of which the manager is to pay the salary of his employees yees. The duty is always cast on the manager to pay the salary. The learned Judge observed:

The teachers are appointed by the management, in its own right and not, on behalf of the Government, the depart mental approval being only a condition for earning the grant; the teacher's contract of service is with the management and in no sense with the Government he is the servant of the management and not of the Government and the obligation to pay him salary is the obligation of the management and not of the Government, even if it is t he Government that under the scheme and subject to its conditions provides the management with the necessary funds.

Certainly this cannot be said of a teacher appointed under the Act and the rules, That decision is therefore distinguishable and on that ground was distinguished in Civil Revision Petition No. 807 of 1934.

8. It therefore follows, that the claims advanced by the respondents against the manager cannot be held to be valid. The result is that the decrees sought to be revised are herby set aside, and the suits dismissed. The revision petitioner are allowed, but in the circumstances, we direct the parties to bear their costs throughout.


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