Skip to content


Shri Safal Kelvani Mandal and ors. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1984)2GLR1488
AppellantShri Safal Kelvani Mandal and ors.
RespondentState of Gujarat and ors.
Cases ReferredState of Maharashtra v. C.P.M. Ore.
Excerpt:
- - 1899 of 1979 that at the time when it was decided to implement the pay-scales recommended by the desai pay commission to the staff of private primary schools a number of petitions were filed before this court seeking appropriate writs, orders and directions against the payment of salaries and allowances etc. however, this court had recommended to the state government to consider the question of payment of appropriate grant to these primary schools so as to enable them to implement the recommendations of desai pay commission, since otherwise it was virtually impossible for the school managements to meet with the staggering liability arising as a result thereof. 305 of 1979, which is the first petition filed in this group of petitions apprehended that their recognitions were likely.....b.k. mehta, j.1. by this group of 40 petitions, the respective petitioners who represent the private management of primary approved schools separating within the jurisdiction of different municipalities or distict panchayats in the state, challenge the amendments in the bombay primary education rules, 1949 (hereinafter referred to as 'the rules of 1949') seeking to regulate the matter of recognition of such schools and their continuance by linking them, inter alia, with compliance of schedule, 'f' containing the model standing orders governing the teachers-management relations. in all these petitions, the challenge to the amendments in the rules is founded on the same contentions though in three of them namely, sp.c.a. nos. 1353 of 1978, 982 of 1978 and 820 of 1978 over and above the.....
Judgment:

B.K. Mehta, J.

1. By this group of 40 petitions, the respective petitioners who represent the private management of primary approved schools separating within the jurisdiction of different Municipalities or Distict Panchayats in the State, challenge the amendments in the Bombay Primary Education Rules, 1949 (hereinafter referred to as 'the Rules of 1949') seeking to regulate the matter of recognition of such schools and their continuance by linking them, inter alia, with compliance of Schedule, 'F' containing the Model Standing Orders governing the teachers-management relations. In all these petitions, the challenge to the amendments in the rules is founded on the same contentions though in three of them namely, Sp.C.A. Nos. 1353 of 1978, 982 of 1978 and 820 of 1978 over and above the common reliefs sought in this group, the individual orders or actions of the Government are also challenged. The nature of the school management in the majority of the petitions is by and through public trusts and in a few of them it is a proprietory managment.

2. Sp.C.A. Nos. 820 of 1978, 972 of 1979 and 1323 of 1979 are schools run by religious minorities. Except this peculiar feature, the contentions urged in all these petitions are by and large common and in similar terms, and the reliefs claimed are also the same, except in the aforesaid petitions where the individual action is challenged and therefore, we propose to dispose of the entire group, except the aforesaid three petitions by the minority communities, by this common Judgment. However, in order to appreciate the contentions, which have been urged, it would be profitable to set out the facts from the first petition which we had taken up for hearing viz. Special Civil Application No. 305 of 1979, which will serve as sample facts.

3. It should be noted at the outset that the majority out of this group is by the school managements operating in Ahmedabad city and Ahmedabad (Rural) district. They are as may as 16. The other major group is from Baroda. The rest are from Kheda, Mehsana, Sabarkantha, Banaskantha, Rajkot, Surendranagar, Bhavnagar and Amreli. The relevant facts which we have taken from Special Civil Application No. 305 of 1979 should be referred to as sample facts representing the facts of these different petitions and they are as under:

4. As many as 39 school managements have been approved as petitioners in Spl. C. A. No. 305 of 1979. The schools are managed by public trusts or as proprietory concerns. These school managements charge fees for imparting tuition to the students admitted in standards I to VII in their respective schools in the range of Rs. 10/-to Rs. 20/ -per month. All these schools are approved schools and the recognition has been conferred on them under the Bombay Primary Education Act, 1947 read with the Rules of 1949. The recognition has been granted to these school managements in different years between 1953 and 1972. None of the schools receive any grant from the State Government under the Grant-in-Aid Code. On November 18, 1971 the Administrative Officer of the Ahmedabad Municipal School Board issued a circular bearing No. 67 whereby the managements of these approved schools were informed that the School Board has decided vide its Resolution No. 102 of October 19, 1972 and to which sanction was accorded by the Director of Education vide his letter of July 26 1972, that the teachers serving in all the private schools should be paid minimum pay-scales as prescribed therein, namely, Rs. 100 per month to untrained teachers, Rs. 120-210 to junior trained and senior trained teachers, the latter shall be entitled to two increments while fixing their salary in the new scales, dearness and other allowances as admissible from time to time under the orders of the District Education Committees. The managements should pay all the arrears of the salary and allowances with effect from 1-4-1973, by another circular bearing No. 5 of 5-4-73 the managements were informed that the School Board has resolved by Resolution No. 324 of 29th March 1973, and as sanctioned by the Director of Education vide his letter of February 7. 1973, to revise the salary and allowances as prescribed under the earlier Circular of November 18, 1972. The revised scales for untrained teachers were Rs. 110-140 and for trained teachers Rs. 135-220. The managements were advised to implement the directions accordingly. It was also clarified that the rate of dearness allowance and other allowances remain unchanged. The managements were also advised by the Administrative Officer vide his circular No. 6 of April 5, 1973 that the revised pay-scales were to be effective from 1st June, 1973 and not from April 1, 1973. By another circular No. 8 of January 6, 1973, the rates of dearness allowance, house rent allowance and other allowances to be paid to the teachers were prescribed. By a subsequent circular No. 10 of April 26, 1973 the rate of dearness allowance was revised. Again by circular No. 55 of January 15, 1976, the managements were directed that the revised pay as prescribed by the Second Pay Commission shall have to be paid to primary teachers in the employment of private school managements with effect from January 1st, 1973. It should be noted at this stage, though it is not specifically averred in Sp.CA. No. 305 of 1979, and which averment is to be found in other petition being Sp. C. A. No. 1899 of 1979 that at the time when it was decided to implement the pay-scales recommended by the Desai Pay Commission to the staff of private primary schools a number of petitions were filed before this Court seeking appropriate writs, orders and directions against the payment of salaries and allowances etc. in terms of the recommendations of Desai Pay Commission. However, those petitions were required to be withdrawn since the Chapter relating to fundamental rights, as a sequel to President's declaration of Emergency, was suspended. The petitions were allowed to be withdrawn with liberty to move the Court afresh as and when the Emergency was lifted. However, this Court had recommended to the State Government to consider the question of payment of appropriate grant to these primary schools so as to enable them to implement the recommendations of Desai Pay Commission, since otherwise it was virtually impossible for the school managements to meet with the staggering liability arising as a result thereof. It appears that the' Education Department of the State Government has, therefore, issued a Resolution on June 29, 1977 recording the decision of the State Government, on careful consideration of all the relevant aspects, that the Government shall bear and pay to the school managements operating in rural area 90% of the actual deficit being the amount of difference between the actual receipts and expenses, and to the extent of 80% of such deficit to the schools operating in municipal area. The said Resolution further clarified that for purposes of working out the actual admissible grant, the receipts will be calculated on the basis of minimum monthly fee of Rs. 6/- and Rs. 8/- in rural and municipal areas, respectively, irrespective of the actual amount of fees charged by the schools concerned operating in either of the areas. However, the school managements charging fees in excess of Rs. 15/- per month would not be entitled to any grant-in-aid from the State Government, and in cases of those schools, which have terminated the services of the teachers in their employment for inability to pay salary and allowances to them in terms of the recommendations of the Desai Pay Commission, grant would be paid only if they are reinstated in the services.

5. The petitioners of Sp.C.A. No. 305 of 1979, which is the first petition filed in this group of petitions apprehended that their recognitions were likely to be cancelled at any time on the ground that the petitioners ware not paying salary to the employees working in the schools of the petitioners according to the recommendations of Desai Pay Commission and, therefore, they have this Court for appropriate writs, orders and directions to quash and set aside rules 106(3)(c), 107(3), 109(2) and (4) and 116 of the Rules of 1949 as ultra vires the Bombay Primary Education Act, 1947, and also for quashing and setting aside the various circulars of the State Government in the matter of fixation of pay and allowances and enjoining the State Government and the Municipal School Board as well as its Administrative Officer not to enforce the provisions contained in the impugned rules and the circulars and such other appropriate reliefs as may be thought fit and proper by the Court.

6. The grounds on which the rules and circulars have been sought to be challenged are as under:

(1) The regulations prescribed in the amended Schedule 'F' by the Gujarat Amendment Rules, 1978 seeking to govern the conditions of services of the teachers in private schools, including the pay and allowances, the discipline and conduct and the retirement benefits, are ultra vires the Bombay Primary Education Act, inasmuch as the Act does not contemplate, much less provide in that behalf.

(2) The aforesaid amended rules, including Schedule 'F', are bad in law and void since they have not been published and/or laid before the State Legislature as required by the Act.

(3) Inasmuch as the aforesaid amended Schedule 'F' regulations governing the conditions of services of the teachers, including their pay and allowances have no nexus with the standards, promotion, development and expansion of primary education, they cannot be said to be in the nature of reasonable restrictions as permissible under Article 19 of the Constitution and, therefore, the impugned circulars issued in exercise of the powers conferred by the said Regulations are bad in law and void.

(4) Assuming that the aforesaid Schedule 'F' is intra vires the Act, the impugned circulars issued by the Administrative Officer under the sanction of the Director of Education prescribing the pay and allowances of teachers working in private schools are bad in law and void inasmuch as the Director of Education being delegate of the State Government, had no jurisdiction, authority or power to prescribe the pay-scales and allowances under clause I of Schedule 'F' on the principle that the State Government could not have sub-delegated its power to the Director while enacting the subordinate legislation.

(5) Rule 106, as amended by the Gujarat Amendment Rules, 1978 does not apply to the schools which have been recognized prior to coming into force of the amendment, and the schools which have been once recognized as approved schools shall continue to be so recognized unless their recognition is capable of being withdrawn under Rule 109 (2).

(6) The power conferred on the competent authority under Rule 109(2) for withdrawal of the recognition is uncontrolled and unfettered since the aggrieved management has no statutory right to prefer appeal against it and, therefore, it is uncanalised and arbitrary power and, therefore, violative of Article 14 of the Constitution of India.

7. Over and above the common grounds, special ground which has been raised in two other petitions, namely, Sp.CA. Nos. 1853 of 1958 and 952 of 1978 is challenging the individual action of de-recognition or threatening to de-recognize. By Sp.CA. No. 1853 of 1978 the chairman of Nutan Shikshan Sangh of village Umalla in Jhagadia taluka of Bharuch district has further challenged the order made by the Administrative officers of Jilla Panchayat cancelling the recognition granted to the Navdurga High School, Umalla for terminating the services of one Shri Bhogilal Lallubhai Patel with effect from August 19, 1978 in clear breach of the provisions contained in-clause II of Schedule 'F' prescribing the procedure before terminating the services. The Special ground raised in this petition is that the impugned order of de-recognition was bad in law and void inasmuch as the Administrative Officer of the District Panchayat has no jurisdiction, power or authority to make the order of de-recognition since he was not competent authority and in any case, the District Education Committee, could not by have done so without the appropriate recommendation in that behalf the Competent Officer as prescribed in Rule 109(2) of the 1949 Rules.

8. In Special Civil Application No. 952 of 1978 one of the petitioners namely, petitioner No. 11, who is the representative of the school management running the school in the name of Shakti Vidya Primary School, Gita Mandir Road, Ahmedabad, appears to have been aggrieved by the notice of May 2, 1978 of the Administrative Officer of the Municipal School Board by which he intimated the management that the recognition was liable to be cancelled with effect from 1-6-1978 if the management fails to make payment of the salary and allowance in terms of the recommendations of the Desai Pay Commission with effect from 1st June, 1977, since the recognition was continued on that condition upto 31st May 1978. The ground of challenge to this notice is similar to one which we have stated for Sp.CA. No. 1853 of 1978.

9. Special Civil Application No. 820 of 1978 by Mr. Benson Cnock Samuel, Deputy Director of Classical Primary Schools Behrampura, Ahmedabad; Sp.CA. No. 972 of 1979 by Saint Peter's English School Trust, Ahmedabad and Special Civil Appln. No. 1323 of 1978 by Gracious Education Trust, Ahmedabad are petitions by the religious minorities challenging the regulatory measures contained in the amended Schedule 'F' of the Bombay Primary Education Rules, 1949 as ultra vires Article 30 of the Constitution of India. These three Special Civil Applications have been disposed of by a separate common judgment since over and above the general grounds raised in this group of petitions, they raised special ground of the impugned resolution violating Article 30 of the Constitution.

10. Before we take up these various challenges, it would be profitable to understand the Scheme of the Act and the Rules and the relevant provisions which have a bearing on the questions raised in this group of petitions.

11. The Bombay Primary Education Act, 1947 (hereinafter referred to as 'the 1947 Act') had been placed on the statute book with effect from January 29, 1948, and was adopted and modified by the Stale of Gujarat by the Gujarat Adoption of Laws (State and Concurrent Subjects) Order, 1980. It is an Act which seeks to provide for compulsory primary education and to make better provisions for the management and control of primary education in the State. The preamble to the Act reiterates that in the discharge of the duty of the Government to secure the development and expansion of primary education and for the purpose of implementing the declared policy of the Government for universal, free and compulsory primary education by a definite programme of progressive expansion and for making better provisions for the development, expansion, management and control of primary education, the Act was placed on the statute book. Broadly stated, the objectives for which the Act has been enacted, and placed on the statute book are sought to be achieved by imparting primary education through primary schools which can be classified into two broad categories, namely, public schools and private schools. Public schools comprise of those primary schools maintained by the State Government, or by District School Board, or by authorised Municipality, and the powers exercised by the District School Board constituted under the Act and functioning immediately before the date of the notification by the State Government in exercise of its powers under Section 155 of the Gujarat Panchayats Act, 1961, devolved on and are to be exercised and performed by the Taluka Panchayats and District Panchayats functioning in that local area within the jurisdiction of such District School Boards. The public schools, therefore, now comprise of primary schools maintained by the State Government, or by an authorised municipality, or by the District Panchayat. Private schools are those schools which do not fall within the category of public schools. However, in order to maintain the uniform standards and norms in imparting primary education, these private schools should be recognized as approved schools. In order to be approved schools, private schools should be recognized either by the School Board, or the State Government, or by an authorised officer. Once a private school is recognized as approved school, it shall have to abide by the provisions of Rules 122 to 140 of the Bombay Primary Education Rules, 1949. It will also be entitled to be placed on the register of approved schools. An approved school continues to enjoy the recognition which has been granted till it is withdrawn by the competent authority, which in a case of school maintained by the Municipality the School Board and in case of those maintained by District Panchayat the District Education Committee. The withdrawal of recognition is, inter alia, for breach of the conditions of recognition. The State Government has been empowered to make rules for carrying out the purposes of the Act and inter alia, for any of the matters prescribed under the Act. The relevant provisions which contain the scheme as aforesaid, and which have a bearing on the questions which have been raised in these petitions may be briefly referred to.

12. Section 2(2) defines 'approved school' to mean a primary school maintained by the State Government or by a school board or by an authorised Municipality or which is for the time being recognized as such by a school board or the State Government or by an officer authorized by it in this behalf. 'Authorized municipality' according to Section 2(6) means a municipality which is authorized by the State Government under Sub-section (1) of Section 16 of the Act to control all approved schools within its area. 'District School Board' would mean under Section 2 (10) of the Act, a school board constituted for a district under Section 3 of the Act. Section 3 of the Act provides for two different types of school boards, namely. District School Board for each of the districts and Municipal School Board for each area of an authorized municipality. District School Board has been invested, under Section 13 of the Act, with a power of control over all approved schools within the district and to grant aid to any approved school other than primary schools maintained by the State Government, or by the School Board, or by authorised municipality. Section 16 empowers the State Government to authorise any municipality constituted under the Bombay District Municipal Act, 1901 or under the Bombay Municipal Boroughs Act, 1925, or under any other corresponding law to control all approved schools within its area. The Municipal School Board to responsible under Section 16 for the management and control of all primary schools which vest in the authorised municipality and also for the control of all other approved schools within the area of authorised municipality excepting such as are maintained by the State Government. Section 39 provides for recognition of and grants to the approved schools under the private management. This provision has an important bearing on the questions raised in these petitions, and it is necessary to set out the said provision which reads as under:

39. (1) Every Primary School, other than a primary school maintained by the State Government or by a school board or by an authorised municipality, which fulfils the conditions prescribed in this behalf shall be entitled to recognition as an approved school.

(2) Such recognition shall be given by the school board or by the State Government or by an officer authorised by it in this behalf, and the manner in which grant-in-aid is to be given to such approved school shall be as prescribed.

13. Section 39(2) provides that the manner of granting recognition and also grant-in-aid is as prescribed in the Rules. Section 63 provides for a rule making power for the State Government which is another important provision in the context of which contentions have been urged challenging the vires of the provision, and it would be, therefore, necessary to set out the material part of the said section so far as relevant for our purposes, which reads as under:

63. (1) The State Government may, by notification in the Official Gazette make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing provision such rules may be made for all or any of the following matters:

(a) to (e) xx xx xx

(ea) provident funds, gratuities and pensions for the primary school teachers maintained by an authorised municipality; (f) the rates of subscriptions and contributions and other conditions of the provident fund established for the staff maintained by district school boards.

(fa) the conditions of gratuities and pensions for the staff referred to in Clause (f): (g) to (i) xx xx x

(j) matters to be prescribed under this Act.

(3) Rules made under Sub-sections (1) and (4) shall be made after previous publications.

(4) All rules made under this Act shall be laid for not less than thirty days before the State Legislature as soon as possible after they are made and shall be subject to such modifications as the State Legislature may make during the session in which they are so laid or the session immediately following. The modifications so made shall be published in the Official Gazette and shall thereupon take effect.

14. The relevant rules which have bearing on the questions raised in these petitions are contained in Chapter VII which is captioned as 'Approved Schools'. Rule 103 provides that every approved school shall conform to the conditions prescribed in rules 122 to 140 of the said Rules, subject to the exemption being granted by the Deputy Educational Inspector of the District to any particular school or class of schools in the locality. Rule 105 provides for maintenance of a register of approved schools. Rule 106 is an important rule and the validity of Clause (c) of Sub-rule (3) thereof has been challenged, and it is, therefore, necessary to set out this rule so far as material for our purposes:

106(1) An application for recognition of a private school as an approved school shall be made to the Deputy Educational Inspector of the District in which the School is situated.

(2) Such application shall be made after the school has been actually started and has been in existence for at least three months and shall be accompanied by a statement in Form 'A' set out in Appendix 'C' to these rules together with an undertaking in writing that the conditions of employment of teachers in the school shall be as near as possible to those specified in Schedule 'F'. No such application shall be entertained for any school year unless if is made before the 1st November of the year.

15. It should be noted at this stage that the said Clause (c) has been brought in by the amendment in the rules known as Bombay Primary Education (Gujarat Amendment) Rules, 1978. In order to appreciate the contentions, which have been urged in support of the challenge to the validity of Clause (c), it is necessary to refer as to what the rule was before the amendment was effected, and what is precisely the amendment made in 1978. Rule 106 comprised of three sub-rules. Sub-rule (1) provided that an application for recognition is to be made to Deputy District Educational Inspector of. the District concerned. Sub-rule (2) provided that such an application can be made three months after the school comes into existence and shall be accompanied, inter alia, by written undertaking on behalf of the school management that the conditions of employment of teachers in the school shall be as near as possible to those appointed in Schedule 'F. Sub-rule (3) enjoined that every approved private school shall have a duly authorised correspondent whose name and address shall be communicated to the school board. Now, this Sub-rule (3) of Rule 106 was amended for the first time with effect from 9th May 1967 by the Bombay Primary Education (Gujarat Amendment) Rules, 1967. Formal amendments were made in Sub-rules (1) and (2). In Sub-rule (1) instead of words 'the Deputy Educational Inspector of the District in which the school is situated' the words 'competent Officer' were substituted. The amendment made is Sub-rule (2) need not be referred as it is not important. The new Sub-rule (3) was substituted in place-of the old one. The main enactment of Sub-rule (3) provided that every primary school which fulfils the conditions specified in Clauses (a) to (f) thereof shall be entitled to recognition as approved school. The first condition provided in Clause (a) is that there should be a need in the locality and would not involve unhealthy competition with any existing primary school. The second condition was that the school must be maintained by a public trust registered under the Bombay Public Trusts Act or a society registered under the Societies Registration Act, 1860 which must be financially stable and in a position to pay salaries of the. teachers regularly and also to make provision for adequate accommodation, furniture, equipment, sanitary arrangements, playgrounds and other necessary amenities for the students. The third condition in Clause (c) of Sub-rule (3) enjoined the managing body of the trust or the society to give undertaking to abide by the orders or instructions issued by the competent authority regarding the working of the school. The 4th condition in Clause (d) provided for regulations of admissions according to the rules approved by the competent authority. Clause (a), which is material for our purposes is as under:

(a) subject to the orders of the Director of Education, the fees rates, the pay scales and allowances are regulated according to the scales approved by the Competent Authority;

Clause (f) enjoined that the Managing Body of the trust or the society which maintains the school shall indicate the name and address of person to whom the communications should be addressed.

16. By the Bombay Primary Education (Gujarat 3rd Amendment) Rules, 1970, again, Sub-rule (2) is amended with effect from September 10, 1971. Again, this is an important amendment and, therefore, the new Sub-rule (2) which has substituted Sub-rule (2) as it then existed, should be set out, which reads as under:

(2) Such application shall be made before the school has been actually started and shall be accompanied by statement in Form 'A' set out in appendix-C appended to these rules together with an undertaking in writing that the conditions of employment of teachers in the school shall be those specified in Schedule-F. No such application shall be entertained for any school- unless it is made before 31st December preceding the academic year from which recognition is applied for.

17. By the Bombay Primary Education (Gujarat Amendment) Rules, 1978, which came into force with effect from 28th December, 1978, Clause (e) of Sub-rule (3) of Rule 106 was again amended which reads as under:

(e) The managing body of the Trust or the Society shall pay to the staff of the school conducted by it such salary on such pay scale as may be approved by the State Government from time to time.

At this stage, it should be noted that Schedule 'F' as it originally prescribed in the Rules laid down model conditions of employment of teachers in private schools. It is not necessary to set out elaborately as to what were the precise terms of these model conditions. Suffice it to say that it provided for the minimum and maximum age limits of the appointee (vide clause 4(a), their qualifications (Clause 7), their confirmation Clause (6), their promotion (Clause 5), their leave Clause 8, 9 and 10), conduct and discipline (Clause 4), procedure for imposition of penalties (Clause II), penalties (Clause 16), appeal (Clause 17) and retirement benefits (Clause 2). As regards the scales of pay, there were no prescribed scales in clause I which provided for pay. This Schedule 'F' was amended for the first time by the Bombay Primary Education (Gujarat Amendment) Rules, 1967. Clause I was amended so as to read that the scales of pay and allowances for the teaching staff shall be in accordance with the scales of pay and allowances laid down by the Director from time to time. There were minor amendments in other clauses to which we need not refer to since they are not of much relevance to us in this group of petitions.

18. Schedule 'F, as it stood after the amendment in 1967, was drastically altered and entirely new set of conditions was incorporated in Schedule 'F', which has given rise to this state of litigation. By clause I the manner of appointment of teachers was prescribed. Clause 1(1) provided for minimum age qualification of 18 years. The maximum age bar of 25 years was removed. Sub-clause (2) of clause I is an important provision which requires to be met out. It reads as under:

(2) The managing body of the trust of the Society shall constitute, for the purpose of selecting teachers for appointment in the school, a selection committees consisting of the following persons, namely:

(i) One representative of the managing body of the trust or the society:

(ii) The head master of the school;

(iii) One representative of the Administrative Officer.

Clause 1(3) requires a candidate for a post in the staff of the school to submit his application to the Head of the School staling his qualifications, experience, etc., and on his appointment either as a temporary or on probation or on a permanent vacancy, a clear order of appointment containing the conditions governing the employment is to be furnished to him. Such appointment order is to make it specifically clear whether it is temporary, probationary or permanent; the scale of salary and the duration of appointment, in case it is either temporary or on probation. Clause 2 provides for letter of acceptance of appointment of the teacher concerned. Clause 3 provides as to what is the distinction between temporary and permanent employee. Clause 4 provides for the period of probation. Clause 6 provides for qualifications. Clause 7 provides for training. Clause 9 which provides for scale of salaries is important. It provides as under:

9. Scale of Salaries - Scales of pay and allowance payable to the teaching and non-teaching staff shall be such as may be approved by the State Government from time to time.

Clause 10 to Clause 12 provide for leave. Clause 15 provides for termination of services of a teacher. This is again an important clause which reads as under:

13. (1) Termination of Services of a Teacher:

The management of a private school, shall not terminate otherwise than as a measure of penalty the services of any permanent trained teachers without the previous permission of an Administrative Officer.

(2) A permanent trained teacher whose services are terminated with the permission of the Administrative Officer after three years of his service shall be entitled to a compensation:

(a) equal to 6 months' salary including allowances if the employee has put in service in the school for a period not exceeding five years, and

(b) equal to six months' salary including allowances for the first five years and a month's salary for every year of the period exceeding five years, if the employee has put in service in the school for a period exceeding five years:

Provided that total compensation payable under Clause (a) or (b) shall not exceed twelve months' salary including allowances:

Provided further that in the case of a teacher on Inquiry Committee shall be constituted consisting of the following persons, namely:

(i) one representative of the management;

(ii) the Head Master of the school, and

(iii) a representative of the concerned teacher, and accordingly the formal inquiry against the teacher shall be held by the said committee instead of the management or an inquiry officer as if where the context so requires for the words 'the management' or 'inquiry officer' the word 'Inquiry Committee' had been substituted.

Clause 14 provides for confirmation of employees on completion of probation. Clause 15 provides the procedure to be followed at the inquiry to be held for terminating the services of a parmenant employee. Clause 16 provides for the minor and major penalties. Clause 18 provides the procedure for imposing major penalties of reduction in rank, compulsory retirement, removal or dismissal from service. Clause 19 provides for the procedure for imposing minor penalties. Clause 20 provides for joint inquiry and clause 21 provides for dispensing with the inquiry in case where the delinquent is convicted. Clause 22 provides for payment of subsistance allowance to a suspended employee. Clause 23 provides for appropriate directions in the matter of pay and allowances and how the absence from duty to be treated in case of reinstatement. Clause 24 provides for appeals against the orders of suspension or imposition of penalties. Clauses 25 to 28 provide for consequential matter in connection with the appeals. Clause 29 provides for revision. Clause 30 provides for appeals against orders other than those of suspension or penalty. Clause 31 provides for termination of services of probationary teacher. Clause 34 provides for the age of superannuation of teachers. The other clauses thereafter are pertaining to discharge certificate, general conditions of service, marking attendance in the school, provident fund and vacation period and the teacher's record and service book which are again not of much importance for our purposes.

19. The next set of rules, it should be noted, is rules 108 & 109. Rule 108 provides for the benefit of recognition. Recognition as an approved school entitles the management of the school to send its pupils at any public examination held by the Education Department of the State Government; present its pupils as candidates for scholarships and to claim such other benefits as Government may, from time to time, declare. Rule 109 is an important rule since the validity of Sub-rules (2) and (4) thereof are challenged in these petitions. It should be noted that Rule 109 as it originally stood in the Rules before its amendment by the Bombay Primary Education (Gujarat Amendment) Rules, 1967, comprised of two sub-rules which read as under:

109. Withdrawal of recognition:

(1) A private school which is once recognised as an approved school shall continue to be so recognised unless its recognition is withdrawn under Sub-rule (2).

(2) Such recognition may, at any time, be withdrawn by the school board on the recommendation of the Deputy Educational Inspector, if any of the conditions on which the school was recognised is not observed, or if the standard of instruction in the school falls materially below the level obtaining in public schools or for other reasonable and sufficient cause.

Provided that due warning has been given to the managers of the school and that reasonable time has been allowed to them to carry out requirements of the School Board;

Provided further that a school which is aggrieved by the decision of the School Board withdrawing recognition may submit an appeal to the Educational Inspector of the District whose decision shall be final.

The effect of the aforesaid amendment in Sub-rule (2) is that the ranks of the officer to make recommendation for withdrawal of recognition and the authority to take decision in that behalf were slightly changed, and they are described as 'Competent Officer' and 'Competent Authority' as defined in Rule 102-A (a) which was inserted for the first time in Chapter VII in the preliminary section 'A' thereof. The Competent Authority would now mean District Panchayat incases of primary schools situated in areas other than those of Gandhinagar and Dangs districts where the School Boards would be Competent Authority. Similarly, Administrative Officer of the District Panchayat and Deputy Educational Inspector would, respectively be Competent Officers for the aforesaid two areas. By the same amending Rules of 1967, two more sub-rules were added in Rule 109 as Sub-rules (3) and (4). Sub-rule (3) provides for a period of limitation of thirty days for preferring an appeal against the decision of the Competent Authority withdrawing recognition. Sub-rule (4) in effect provided that if a private primary school recognized as an approved school under the Rules fails to get registration either under the Bombay Public Trusts Act or the Societies Registration Act within six months from the commencement of the said Rules, that is, 9th May 1967, the recognition was liable to be withdrawn. Rule 109 was again amended by Bombay Primary Education (Gujarat 2nd Amendment) Rules, 1969 with effect from 26th November, 1969. In the second proviso to Sub-rule (2), as it stood before the 1969 amendment, the order of District Educational Inspector on an appeal preferred by a management aggrieved by the decision of the Competent Authority to withdraw recognition was made final. This was amended and the effect thereof is that his decision is final subject to any orders passed by the State Government under Sub-rule (5) which again was sought to be inserted in Rule 109 by the 1969 Rules. Sub-rule (5), in effect, invested the State Government with the revisional power to satisfy itself about the correctness of the order made by the Competent Authority, or the order made by the District Educational Inspector in appeal in the matter of withdrawal of recognition, and the State Government can, after holding such inquiry as it may think fit, modify, annual or reverse the order as it may deem fit, provided that if such order is likely to adversely affect a school, the school would be given a reasonable opportunity of hearing. In the present group of petitions Sub-rules (2) and (4) have been challenged.

20. The next important rule is Rule 107. Sub-rule (1) thereof provides that the Deputy Educational Inspector has to arrange for the inspection of the school immediately on receipt of the application for recognition, and for submission of this report containing his recommendation in that behalf. The School Board has to consider the inspection report and the recommendation of the Deputy Educational Inspector and grant the recognition to the school as an approved school, if it is satisfied about the need of the school in the locality, the standards of working and general management of the school. It may also simultaneously direct that the school be treated as eligible for grant-in-aid from Primary Education Funds. Sub-rule (3) provides that a school board may, for reasons to be recorded in writing, reject an application for recognition, and the Administrative Officer shall forthwith communicate the decision to the school management. The aggrieved management has a right to prefer an appeal against this decision to the District Educational Inspector, whose decision is made final. However, this decision will not preclude the school management from applying afresh in the next academic year. By the Primary Education (Gujarat Amendment) Rules, 1967, Sub-rules (1), (2) and (3) are amended. The effect of the amendment is almost similar to the amendments made in Sub-rule (2) of Rule 109. Instead of Deputy Educational Inspector who has to inspect and make recommendations in the matter of recognition, and the School Board who has to grant the recognition, these powers are vested in the Competent Officer and the Competent Authority as defined respectively in Rule 102-A. The period of limitation has been also introduced in preferring an appeal as prescribed in the first proviso to Sub-rule (3). It should be noted that in this group of petitions Sub-rule (3) of Rule 107 in challenged.

21. Another important rule is Rule 115 which provides as to how the grant-in-aid is to be determined. This rule is also challenged in this group of petitions.

22. Rules 110 to 121 provide for the grant-in-aid to the private schools. Rules 122 to 140 are contained in section 'C' of Chapter VII prescribing the conditions to be observed in approved schools. These conditions, inter alia, provide for infra-structure such as accommodation, equipment etc., curricula and standards of teaching, time-tables, attendance hours of instruction, holidays, fees, admission of pupils and their leaving and age certificates, attendance, roll-call, annual examination and necessary registers, records and correspondence.

23. It is in this background that we have to determine as to whether the petitioners are entitled to all or any of the reliefs prayed for in their petitions.

Re : Contentions Nos. 1, 2, 3 & 4:

24. The first limb of the argument articulated as per contentions Nos. 1 and 3 is, in our opinion, not well-founded. It is no doubt true that Section 63 of the Act containing rule making power does not in terms particularise the matter of salary and allowances, or retirement benefits, or discipline and conduct of the employees in respect of which the State Government is invested with the power to make rules as found in Section 271 of the Gujarat Municipalities Act, 1963. The rule making authority has no plenary power and it has got to act within the limits of the power granted to it (see B. C. Banerjee and Ors. v. State of M.P. and Ors. : [1971]81ITR105(SC) It was, therefore, strenuously urged that the State Government could not have prescribed the model conditions of employment of staff in private schools in the State of Gujarat as was sought to be done under Schedule 'F' as amended by the 1978 Gujarat Amendment Rules. This limb of argument appears to be attractive on the face of it, but on close scrutiny, it would not stand the test, whether it is well-founded. The matters which have been particularised in Section 53(2) are without prejudice to the generality of the provision contained in Sub-section (1) where the Government has been invested with the power of widest amplitude so as to enable it to prescribe rules for implementing the purposes of the Act. The purposes of the Act, as we have seen earlier and which have been envisaged and set as objectives before the State Government are to be found in the preamble of the Act. It is, inter alia, provided in the preamble that the Act has been enacted since it has been found expedient by the State Government to make better provisions for the development, expansion, maintenance and control of primary education. It cannot be gainsaid, much less it can be a matter of serious debate that the teachers working in private schools of the State are live mechanism to expand, develop and control primary education in the State. The programme of the progressive expansion by itself and in disregard of the known sense standards of its quality would be self-defeating inasmuch as the State would be thereby embarking upon the programme involving huge financial implications so as to turn out the mediocre and stuffless millions so-called educated young people who would be eternal source of discontent and breeding ground of revolt against the establishment. It will be too late in the day to urge successfully that the rules prescribing the conditions of employment of teachers including their appointment, scales of pay and discipline and conduct are not germane to efficiency and excellence in educational sources (see : St. Xavier's College v. State of Gujarat : [1975]1SCR173 There is another aspect of the matter which the petitioners have completely lost sight of when they attempted to challenge these model conditions of employment contained in Schedule 'F', inter alia, in the matter of scales of pay, since the petitioners are more aggrieved with this particular provision in respect of scales of pay that it is with a view to achieve uniformity in all approved schools whether public or private-that this provision has been inserted requiring the State Government to approve the scales of pay and allowances payable to teaching and non-teaching staff in private schools. If the scales of pay and allowances is left to the collective bargaining of employer and employees, it would have resulted into distorted wage policy by which the teachers in private management would have been meted out in discriminatory treatment if they had been denied the same scales of pay granted to their counter parts working in approved public schools. We do not think, therefore, that Schedule 'F' to the Bombay Primary Education Rules, 1949, as amended by the Gujarat Amendment Rules of 1978 can be challenged on the ground that they are ultra vires the Act inasmuch as the Act does not particularise the matter of conditions of employment as within the rule making power of the State Government, and that the conditions of employment cannot by any stretch of imagination, be said to have nexus with the standards, promotion, development and expansion of education. In view of the settled legal position by the decision of the Supreme Court in St. Xavier's College's case (supra), we do not think that this limb of argument as urged in contentions Nos. 1 and 3 can be sustained.

25. The learned Advocates for the petitioners, therefore, advanced their second limb of challenge to Schedule 'F' provisions by urging that the 1978 Amendment Rules by which new Schedule 'F' has been inserted in the Rules which made material and fundamental departure from the original Schedule 'F' conditions so as to circumscribe the right and initiative of private management in the field of education are bad in law and void, inasmuch as they have not been published and/or laid before the State Legislature as required by the Act. This contention is merely to be stated for being rejected since the notification issued by the State Government in Education Department dated December 28, 1978 clearly recites that the draft rules to amend the Bombay Primary Education Rules, 1949 were published as required by Sub-section (3) of Section 63 of the Act in the Government Gazette, Part I-A at pages 159 to 172 on 16th March, 1978 under the Government Notification of Education Department of 28th February 1978 inviting objections and suggestions from all persons likely to be affected thereby till 31st May, 1978, and that objections and suggestions received from the public on the said draft have been considered by. the Government and, therefore, in exercise of the power conferred by Section 63 of the Act, and all other powers enabling in that behalf, the Government of Gujarat made the rules to amend the Rules of 1949. The grievance that these Rules have not been laid before the State Legislature for not less then 30 days as soon as possible after they were made requires some consideration. Sub-section (4) of Section 63, as stated above, enjoins that all rules made under the said Act would be laid for not less than thirty days before the State Legislature as soon as possible after they are made and they would be subject to such modifications as the State Legislature may make during the session in which they are laid, or the session immediately following. Two questions would arise in this connection Were these rules laid before the State Legislature for the required period, and if not, what is its effect This grievance has been made in paragraph 57-A of Special Civil Application No. 305 of 1979 which has been inserted by the amendment therein. By the averments made in this amended part, the petitioners make a grievance that the procedure as required by Sub-section (4) of Section 63 of the said Act of previous publication laying requirement has not been complied with. To this amended petition, reply affidavit dated April 19, 1983 of one Shri A.S. Makwana, who happened to be Under Secretary in Education Department, State of Gujarat at the relevant time has been filed on behalf of the State Government. In paragraphs 4 and 5 it is stated as under:

4. I say that the draft amended rules were published in Official Gazette dated 5th April 1978 (Government Gazette Extraordinary Part-IX.) Objections were invited upto 31-5-78. Final Rules were published in Gujarat Government Gazette Part-IA, dated 25-1-79. They were laid before Gujarat Vidhan Sabha in II Session. The Vidhan Sabha referred it to its 'Subordinate Legislation Committee'' but the modifications suggested are not finally passed.

5. This reply may be taken into consideration in all other similar Special Civil Applications.

Since these averments in the reply affidavit have not been controverted by the petitioners, the assertion made on behalf of the State Government in the reply affidavit remains uncontroverted that the laying down clause requirement was satisfied. However, it was urged that the reply affidavit does not furnish sufficient particulars so as to satisfy the Court that the laying down clause has been observed in spirit and letter of law. We have, therefore, assumed that the laying down clause is not satisfied as the stand of the State Government lacks in furnishing particulars necessary to repel the contention of non-compliance with the laying down clause urged on behalf of the petitioners, inasmuch as, as to when the State Legislature was convened and whether the Rules were laid for about 30 days before the State Legislature. We have, therefore, proceeded on the above assumption that the laying down requirement has not been fulfilled. What is the effect of non-compliance of this obligation of laying down of the Rules is, therefore, to be looked into.

26. In Atlas Cycle Industries Ltd. v. State of Haryana A.I.R 1969 S.C. 1149, the Supreme Court was concerned with a similar question in the context of laying requirement of an order issued under Section 3(6) of the Essential Commodities Act, 1955. Sub-section (3) of Section 3 required that an order issued under the section shall be laid before both the Houses of Parliament as soon as may be after it is made. The instrument which was required to be placed before the Houses of Parliament in Atlas Cycle's case was the notification of the Central Government fixing maximum selling prices of various categories of iron and steel including the black plain iron sheets passed under the Iron and Steel Control Order, 1956 The Court ruled that the requirement of laying before both the Houses of Parliament of any order under Section 3(6) of the Essential Commodities Act, 1955 is only directory and not mandatory, and the Legislature never intended that non-compliance with the requirement of laying as envisaged by Sub-section (6) of Section 3 of the said Act should render the order void, and that, consequently nonlaying of the notification fixing the maximum selling prices of various categories of iron and steel including the black plain iron sheets, passed under Clause 15(i) of Iron and Steel Control Order, 1956 before both the Houses of Parliament cannot result in nullification of the notification. The Supreme Court also indicated as to the relevant considerations which the Court has to bear in mind in determining as to whether a provision before it is, mandatory or directory. Two relevant considerations, which have been pointed out by the Supreme Court, are: (1) absence of any provision for the consequence of non-compliance of the legislative mandate, and (2). serious general inconvenience and prejudice resulting from invalidating the Act of the Government for such non-compliance. The Supreme Court, speaking through Jaswant Singh J., in Atlas Cycle's case (supra), referred to the different categories of provisions relating to laying requirement in different statutes. This is what the Supreme Court has observed in paragraph 20 of the said judgment:

20. Now the policy and object underlying the provisions relating to laying the delegated legislation made by the subordinate law making authorities or orders passed by subordinate executive instrumentalities before both Houses of Parliament being to keep supervision and control over the aforesaid authorities and instrumentalities, the 'laying clauses' assume different force depending on the degree of control which the Legislature may like to exercise. As evident from the observations made at pages 305 to 307 of the 7th Edition of Craias on Statute Law and noticed with approval In Hukum Chand v. Union of India : [1973]1SCR896 there are three kinds of laying which are generally used by the legislature. These three kinds of laying are described and dealt with in Craias on Statute Law (supra) as under:

(i) Laying without further procedure,

(ii) Laying subject to negative resolution,

(iii) Laying subject to affirmative resolution'.

Broadly stated, the implications of these three types of laying clause : are (1) that the provision for laying rules etc. for a period during which time they were not in operation and could be thrown out without ever having come into operation, (2) the laying subject to negative resolution would mean that the rules etc. would have immediate operative effect but are subject to annulment within the specified period without prejudice to new rules etc. being made. The appropriate phraseologe which is employed by the Legislature is 'subject to annulment it pursuance of a resolution of either House of Parliament,' and (3) laying subject to the affirmative resolution normally means that no order shall be made unless the draft has been laid before Parliament and has been approved by the resolution of each House of Parliament The present provision with which we are concerned does not false strictly within any of these categories. The only subjection to which the Rules laid before the House has been put to is that they would be subject to such modifications as the State Legislature may make during the session in which they are so laid or the session immediated following, and such modifications are to be published in the Official Gazette. It, therefore, cannot be urged successfully that the necessary consequence of such a provision is to invalidate the Rules for not compliance thereof. In other words, Sub-section (4) of Section 63 does n provide any penalty for non-observance or non-compliance of the direction as to laying of the Rules before the State Legislature would also be noticed that the requirement as to laying of the Rule before the State Legislature is not a condition precedent but subseque to the making of the Rules, the only limitation is that if any modification is made during the course of laying before the State Legislature in the same session in which they are laid, or in session immediate thereafter the Rules would be subject to modifications. In other won there is no prohibition of the making of the Rules without the approve of the State Legislature. This was substantially the position in the Act with which Supreme Court was concerned in Atlas Cycle's case (supra) The present Rules with which we are concerned, came into force on the publication thereof since there is no provision as to on a particular day the Rules would be effective. Therefore, the only purpose underlying the laying down clause is to make them subject to modifications, if any, made by the State Legislature in the session in which they are laid or in the session immediately succeeding thereto. The laying requirement is, therefore, directory, particularly when it is not coupled with the requirement of laying the Rules in draft form in which case the Rules cannot come into force without being laid before the House (see : Jan Mohammad Noor Mohammad v. State of Gujarat : [1966]1SCR505 The provision in Sub-section (4) is a simple laying formula and the failure to lay the Rules would not effect their legal validity.

27. The learned Advocates for the petitioners, therefore, advanced the point which they have raised in contention No. 4. The grievance was that according to clause 9 of Schedule 'F', scales of pay and allowances-payable to the teaching and non-teaching staff shall be such as May be approved by the State Government from tine to time and inasmuch as the impugned circulars applying the pay scales as recommended by the Desai Pay Commission to teaching and nonteaching staff were issued by the Administrative Officer under the sanction of the Director of Education, the circulars are be in law and void on the principle that the State Government which was a delegate of legislature could not have sub-delegated this power to the Director in that behalf. It is no doubt recognized in principle and on authority that a delegate cannot further delegate his power. This principle postulates that the power should be exercised by the authority on whom it has been conferred by the law in question and not by any other authority. There is no assumption that this principle applies only to sub-delegation of delegated legislative power and to sub-delegation of other powers delegated by the superior administrative authority. It applies to the delegation of all charges of powers and it was invoked originally in the context of delegation of judicial powers (see : Judicial Review of Administrative Action, 4th Edn. by de Smith, page 198). There is no doubt a strong presumption against construing a grant of delegated legislative power as empowering the delegate to sub-delegate the whole or any substantial part of the law-making power entrusted to it (vide : de Smith's Judicial Review of Administrative Action, 4th Edition, page 300). It should be noted that this maxim delegatus non potest delegato is more strictly applied to the further over delegation of sub-delegated powers than to the sub-delegation of primary delegated powers (vide : de Smith's Judicial Review of Administrative Action, 4th Edition page 305). The general principle, therefore, is that sub-delegation may take place when the law either expressly or impliedly provides for such a possibility. In view of these settled legal principles, we have to see whether sub-delegation is permitted. Section 60 of the said Act empowers the State Government to further delegate its powers and duties to any officer or authority subordinate to it, and also empowers the Director, with the previous sanction of the State Government, to delegate any of his powers or duties under the. said Act or the Rules or delegated to him by the State Government to any officer subordinate to him. The material part of Section 60 reads as under:

60. (1) Subject to such conditions, if any, as may be specified:

(i) the State Government may delegate any of its powers or duties under this Act or the rules made thereunder to any officer or authority subordinate to it, and

(ii) the Director may also with the previous sanction of the State Government delegate any of the powers or duties under this Act or the rules made thereunder or delegated to him by the State Government under Clause (i) to any officer subordinate to him...

In view of this clear provision contained in Section 60(1), we do not think that it can be urged successfully that the impugned circulars were ultra vires the powers of the Director or the Administrative Officer on the principle that a delegate cannot sub-delegate his power. No contention has been urged that in fact no sub-delegation has been made. We are. therefore, of opinion that contentions Nos. 1 to 4 should be rejected.

Re : Contention No. 5:

28. The argument in support of this contention runs as under:

Rule 109(1) entitles a private school which is once recognized as an approved school to continue to be so recognized unless its recognition is withdrawn under Sub-rule (2). Sub-rule (2) empowers, inter alia, the competent authority on the recommendation of the competent officer to withdraw the recognition, if any. of the conditions on which the school was recognized was not observed, it is urged that in almost all the schools, the recognition has been granted before the Bombay Primary Education (Gujarat Amendment) Rules 1978 came in force. These schools had furnished undertakings to abide as nearby as possible by Schedule 'F' conditions as were in force before 1978 Amendment Rules. By the earlier Amendment Rules of 1970. Sub-rule (2) of Rule 106 was amended so as to provide for furnishing an undertaking in writing by the school management seeking recognition that the conditions of employment of the teachers in school shall be those as specified in Schedule 'F'. Now this schedule, as it stood before the 1978 Amendment Rules, has been substituted by new Schedule 'F' of the 1978 Rules. It is, therefore, urged that the schools which have been once recognized as approved schools continue to enjoy the recognition unless the recognition is capable of being withdrawn under Rule 109 (2), and Rule 106 (2), as amended by the Amendment Rules of 1970 or 1978 cannot prescribe new obligation the breach of which would result into curtailment of the right ensured to the management under Rule 109C2) of the Bombay Primary Education Rules. The neat question of law which arises is whether the repeal of Schedule 'F' and enactment of a new Schedule in its place would affect the rights which have been already acquired under the relevant rules as they stood before 1970 or 1978 amendment. In other words what is the effect when a repeal if followed by a fresh legislation on the Same subject on the rights and liabilities accrued before the repeal of a statute and regulation and enactment of a new one in its place. The principle underlying Section 7 of the Bombay General Clauses Act is that every later enactment which supersedes on earlier one or puts an end to an earlier state of law is presumed to intend the continuance of rights accrued and the liabilities incurred under the superseded enactment unless there are sufficient indications, express or implied, in the latter enactment envisaging to completely obliterate the earlier state of law (see : State of Orissa v. M.A. Tulloch & Co. : [1964]4SCR461 The problem with which we are concerned in these matters is not merely as to what is the effect of repeal of an enactment or rules or regulations. We are concerned with the situation when the repeal is followed by a fresh legislation on the same subject. It is in that context that we have to decide the contention which has been urged on behalf of the petitioners. The legal position is well settled in this respect that when an existing statute or regulation is repealed and the same is replaced by a fresh statute or regulation unless the new statute or regulation specifically or by necessary implications affects the rights created under the old law, these rights must be held to continue in force even after the new statute or regulation comes into force (see : Jindas Oil Mill v. Godhra Electricity Co. A.I.R. 1969 S.C. 1228). The Court is in the context of this situation where repeal is followed by fresh legislation on the same subject, obliged to look into the provisions of the new Act only for purposes of determining whether they indicate a different intention and the line of inquiry would be not whether the new Act keeps alive the old rights and liabilities but whether it manifests any intention to destroy them (see : State of Punjab v. Mohan Singh A.I.R.. 1955 S.C. 84). It should also be recalled that Rule 106(2) which, before its amendment in 1970, enjoined a school management seeking recognition as an approved school, to furnish an undertaking in writing that the condition of employment of teacher in the school shall be as near as possible to those specified in Schedule 'F', is modified by the amendment made in the Primary Education (Gujarat Amendment) Rules, 1970, providing that written undertaking should be to the effect that the condition of employment of teachers in the school shall be those as specified in Schedule 'F'. We have, therefore, to bear in mind the proper canon of construction where a subsequent Act amends the earlier one in such a way as to incorporate itself as a part of itself into the Act. In such a situation the earlier Act, after the amendment is to be read and construed as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. (see : Shamrao v. District Magistrate Thaw : 1952CriLJ1503

29. In Shri Ram Narain v. The Simla Banking & Industrial Co. Ltd. : [1956]1SCR603 the effect of an Act amending the earlier Act has been stated as under:

It is perfectly true that whenever an amended Act has to be applied subsequent to the date of the amendment the various unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. This is for the purpose of determining what the meaning of any particular provision of the Act as amended is, whether it is in the unamended part or in the amended part. But this is not the same thing as saying that the amendment itself must be taken to have been in existence as from the date of the earlier Act. That would be imputing to the amendment retrospective operation which could only be done if such retrospective operation is given by the amending Act either expressly or by necessary implication. ...

It is trite position of law to say that there is a strong presumption that the Legislature does not impose new liabilities in respect of something that has already happened because generally it would not be reasonable for the Legislature to do so that, bat this presumption may be overcome not only by express words in the Act but also by circumstances sufficiently strong to displace it. (see : Sunshine Porcelain Potteries v. Nash (1961) 3 All E.R. 203 at p. 206. The meaning of words 'shall be substituted' is not capable of much debate and the process of substitution comprises of a repeal and a fresh enactment and the two are part and parcel of single individual process (see : State of Maharashtra v. C.P.M. Ore. & Co. : [1977]1SCR1002 The scope of the amendatory Acts has been explained in Crawford's Statutory Construction at p. 110 in paragraph 78 dealing with 'Repealing and Amendatory Acts' as under:

Amendatory statutes are sometimes nearly anonymous with curative acts so far as effect is concerned, since they are sometimes enacted to serve the same purpose. Yet their scope is more comprehensive. They may be defined as those statutes which make addition to or operate to change the original law so as to effect an improvement therein, or to more effectively carry out the purposes for which the original law was passed. Strictly speaking, however, an amendatory act is not regarded as an independent act. All or part of the old act is permitted to remain. But where a section of a statute is amended, the original ceases to exist and the new section supersedes it and becomes a part of the law just as if the amendment had always been there. Nevertheless, from the standpoint of ultimate effect, an amendment and a repeal have a great deal in common.

In view of these settled legal principles, we are afraid that the present contention as advanced on behalf of the petitioners deserves to be sustained. If Rule 106(2) is amended as indicated above, so as to oblige the school management to file a written undertaking that the condition of the employment of teachers in the school shall be those as specified in Schedule 'F' in place of the original obligation to furnish a written undertaking that the condition of the employment of teachers in the school shall be as near as possible to those specified in Schedule 'F' on the recognized principle of interpretation as set out above, the original provision of Section 106(2) before the amendment in 1970 ceases to exist and the new section supersedes it and becomes a part of the law just as if the amendment had always been there. It, therefore, cannot be urged successfully that since the obligation which is now prescribed after amendment in 1970 is materially different, the schools which are once recognized as approved schools would continue to be so recognized unless their recognition can be withdrawn fur the breach, if any, of the original undertaking only. The contention that the rights of the schools which were recognized prior to the amendment in 1978 when the old Schedule 'F' was substituted by the present one, cannot be disturbed is also not well-conceived. It is in the ultimate analysis the question of legislative intent as evinced in the amended rule to indicate that the legislature intended to destroy those rights. The amendment in Rule 106(2) in 1970 clearly manifests the clear legislative intent that the Legislature wanted to impose an obligation on the school managements to undertake that the conditions of teaching and non-teaching staff in the employment of such recognized schools to be as those specified in Schedule 'F'. The presumption that the Legislature which generally does not impose new liabilities in respect of some thing that had already happened is rebutted by the express words used in the amending rule as well as the substitution of new Schedule 'F' in place of the old one. In that view of the matter, therefore the 5th contention deserves to be rejected.

Re : Contention No. 6:

30. The contention that the power conferred on the competent authority under Rule 109(2) for withdrawal of recognition is uncontrolled and unfettered particularly because there is no statutory right of preferring appeal against it, and therefore, violative of Article 14 of the Constitution is though prima fade, attractive, would not stand the close judicial scrutiny. The reasons are obvious. It cannot be said that the power conferred on the competent authority, which after addition of Rule 102-A by the Bombay Primary Education (Gujarat Amendment) Rules, 1967 would mean District Panchayat in case of primary schools situated in the area other than Gandhinagar district and the Dangs district where the School Board would be the competent authority, and the competent officer to make recommendation is the Administrative Officer of the District Panchayat and the Deputy Educational Inspector in Gandhinagar and Dangs districts cannot be said to be unfettered and uncanalized for the obvious reasons which are as under:

31. In the first place, second proviso to Sub-rule (2) of Rule 109 entitles a school which is aggrieved by the decision of the competent officer withdrawing recognition, to file an appeal to the Educational Inspector within 30 days from the date of the receipt of the decision of the competent authority. By the Bombay Primary Education (Gujarat Second Amendment) Rules, 1969, in the second proviso of Sub-rule (2) of Rule 109, as it stood before the 1968 amendment, the order of the District Educational Officer on an appeal preferred by a management aggrieved by the decision of the competent authority to withdraw recognition which was made final was amended with the result that his decision is now final subject to any orders that may be passed by the State Government, which was again sought to be inserted in Rule 109 by the 1969 amendment Rules. Sub-rule (5), in effect, invested the State Government with the revisional power to satisfy itself about the correctness of the order made by the competent authority, or made by the District Educational Inspector in appeal in the matter of withdrawal of recognition, and the State Government, can, after holding such inquiry as it may think fit, modify, annual or reverse the order as it may deem fit, and if such an order is likely to affect the school adversely, the school management is to be given a reasonable opportunity of hearing. It, therefore, cannot be said that the power of withdrawal or recognition is unfettered and uncanalized since there is no procedural safeguard and, therefore, violative of Article 14 of the Constitution. The 6th contention, therefore, deserves to be rejected.

32. We may now go to the particular contentions which arise specifically in other group of petitions which we have set out above.

Re : Spl. Civil Appln. No. 1853 of 1978:

33. In this petition, by Navdurga High School, Umalla managed by Shri Nutan Shikshaii Sangh, Umalla, Taluka, Jhagadia in Bharuch district, the order made by the Administrative Officer, Jilla Panchayat, dated July 31, 1978 cancelling the recognition under Rule 109(2) of the Bombay Primary Education Rules is challenged as bad in law and void inasmuch as the Administrative Officer of the District Panchayat has no jurisdiction, power or authority to make the order of de-recognition. It should be recalled that by the Bombay Primary Education (Gujarat Amendment) Rules, 1967, Rule 109(2) has been amended so as to substitute the competent authority in place of the School Board and the competent officer in place of the Deputy Educational Inspector. The said Rules have inserted a new Rule, namely. Rule 102-A defining the terms 'competent authority' and 'competent officer'. The effect of the aforesaid amendment is that in respect of the primary schools situate in the areas other than Gandhinagar and Dangs districts, the competent authority would mean the District Panchayat and the Administrative Officer of the District Panchayat would be competent Officer in the said areas for making recommendations for withdrawal of the recognition. The grievance of the petitioner that the Administrative Officer, Bharuch Jilla Panchayat has no power or authority to cancel the recognition appears to be well-founded since nothing has been placed on the record by the respondents to show that the District Panchayat, which is the competent authority for withdrawal Of the recognition after the amendment of Rules in 1967, has resolved to withdraw the recognition. In any case, the District Panchayat could not have acted on its own save and except on the recommendation made in that behalf by the Administrative Officer. In the present case, it appears that the Administrative Officer himself has exercised this power which he does not possess under the relevant rules. The said order of July 31, 1978 is, therefore, clearly beyond his jurisdiction, power and authority and deserves to be quashed and set aside.

Re : Spl. Civil Appin. No. 952 of 1978:

34. The School Management of Shakti Vidyalaya Primary School, Geeta Mandir Road, Ahmedabad Petitioner No. 11 is aggrieved by the notice of May 2, 1978 of the Administrative Officer of the Municipal School Board by which the management has been intimated that the recognition was liable to be cancelled with effect from 1-5-1978 if the management fails to make payment of the salary and allowances in terms of the recommendations of the Desai Pay Commission with effect from 1st June. 1977. The impugned notice has been issued by the Administrative Officer of the School Board of Ahmedabad. The ground on which this notice has been challenged is that the authority which could have issued the notice can be the Deputy Educational Inspector and in any case no order can be made by the authority other than the competent authority as defined in Rule 102-A of the said Rules. We are of the opinion that since this is merely an initiation of proceedings, it cannot be said that the Administrative Officer is not entitled to initiate proceedings. The question of cancellation of the recognition would arise only after the explanation is submitted by the school management concerned. We do not, therefore, think that this particular challenge is well-founded.

35. The result is that for the reasons aforesaid, the group of Special Civil Applications other than Special Civil Application No. 1853 of 1978 is dismissed. Rule in each of the said petitions is discharged with no order as to costs.

In Special Civil Application No. 1853 of 1978 the impugned order of July 31, 1978 made by the Administrative Officer of the Jilla Panchayat is quashed and set aside with liberty to the Jilla Panchayat to take fresh action according to the correct legal principles if the Panchayat is so advised. Rule in this petition is made absolute accordingly with no order as to costs.

36. The learned Advocates representing the respective petitioners pray for the stay of the implementation of the judgment in this group of petitions, so as to enable them to file appeal in the Supreme Court and obtain necessary interim relief in the matter, on the condition that the school managements concerned, which are the respective petitioners in this group of petitions will not terminate the services of any member of teaching or non-teaching staff without the permission of the Court. The stay as prayed for is granted for the period of six weeks.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //