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Sardar Jaswant Singh Vs. Board of Secondary Education and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 3318 of 1959
Judge
Reported inAIR1962Cal20,65CWN1132
ActsConstitution of India - Article 226; ;Revised School (West Bengal) Code, 1930 - Rule 33
AppellantSardar Jaswant Singh
RespondentBoard of Secondary Education and ors.
Appellant AdvocateA.K. Dutt and ;B.S. Khoji, Advs.
Respondent AdvocateS. Roy, ;S. Sinha and ;Narendra Narayan Roy, Advs. for Opposite Party Nos. 3, 7 to 9 and ;N.C. Chakrabarty and ;S.K. Rai Chaudhury, Advs. for Opposite Party No. 2
DispositionApplication dismissed
Cases ReferredSantosh Kumar Mukherjee v. Dr. Amar Nath Mukherjee Judgment
Excerpt:
- .....order that this application is directed. 2. the point taken is that under rule 33 of the revised school code, it is the managing committee alone which can suspend a teacher, and that the vice-president of the school, although a member of the managing committee, cannot by himself make such an order. rule 33 of the revised school code runs as follows; '33. a teacher may be suspended by the committee on grounds of moral turpitude or professional misconduct. in cases where dismissal is subsequently decided upon, the order shall not take effect until the time for appeal to the arbitration board has expired and that tribunal has given its decision. in the case of aided schools, suspension on the ground of moral turpitude or professional misconduct shall take effect without delay if the.....
Judgment:
ORDER

Sinha, J.

1. In this application we are concerned with the affairs of the Khalsa High School which is situated at 73, Paddapukur Road in the city of Calcutta, the affairs thereof are in the hands of a Managing Committee and it is not disputed that such affairs are subjected to and governed by, the provisions of the West Bengal Secondary Education Act, 1950. In the application, numerous facts have been stated, condemning the administration of the School by the Managing Committee and particularly the conduct of the respondent No. 3, Sri G.S. Grewal, who has been described as the Vice-President of the Managing Committee, in my opinion, however, it is not necessary to go into any such facts. The scope of this application lies in a very small compass and is as follows: The petitioner was employed as an Assistant Teacher in the saidSchool, and at the relevant time the respondent No. 3 was the Vice-President of the Managing Committee. On or about the 3rd August, 1959 the said Vice-President informed the petitioner that he had absented himself from School and his explanation was unconvincing and false, and his services were suspended with effect from 13-7-59 in the interest of the School. Upto now, the petitioner has remained suspended. It is against this order that this application is directed.

2. The point taken is that under Rule 33 of the Revised School Code, it is the Managing Committee alone which can suspend a teacher, and that the Vice-President of the School, although a member of the Managing Committee, cannot by himself make such an order. Rule 33 of the Revised School Code runs as follows;

'33. A teacher may be suspended by the Committee on grounds of moral turpitude or professional misconduct. In cases where dismissal is subsequently decided upon, the order shall not take effect until the time for appeal to the Arbitration Board has expired and that tribunal has given its decision.

In the case of aided schools, suspension on the ground of moral turpitude or professional misconduct shall take effect without delay if the Committee so desires or the Inspector or Inspectress of Schools so directs'.

3. That the order of suspension dated 3-8-1959 was made by the Vice-President and not by the Managing Committee is not disputed. What happened, however, was that subsequently a resolution was passed by the Managing Committee confirming all the actions of the Vice-President. It is argued that this resolution is not valid because it was not in the agenda and no specific mention was made in the resolution regarding this particular order of suspension. I shall deal with this aspect of the matter presently. Mr. Ray appearing on behalf of the respondents Nos. 3 to 10 has taken two preliminary points. The first point taken is that the Managing Committee of this private school was not a 'public body' and the respondent No. 3 was not a 'public officer' discharging public duties or statutory duties. Hence, it is not permissible to issue a writ in the nature of mandamus. The second point taken is that in any event the Revised School Code is not a statutory provision of law. Therefore, a writ in the nature of mandamus does not lie to enforce the same. In Sohanlal v. Union of India : [1957]1SCR738 Imam J., said as follows:

'Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order which appertains to his office and is in the nature of a public duty (Halsbury's Laws of England, Vol. II, Lord Simond's Edition p. 84). If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court'.

4. In this case, of course, there is no allegation of collusion. The question is whether the Managing Committee of a private school is a 'public body' and whether it has public duties to perform or duties based on any statutory provision. In a Division Bench judgment of this Court, Khetsidas Giridharilal v. Pratapmull Rameswar, AIR 1946 Cat 197, it was held that a writ in the nature of mandamus can be issued against a person holding a public office. Such a body may be an unincorporated body such as the State Medical Faculty of West Bengal, which was recognised by a statute and had public duties to perform, Bijoy Ranjan v. B.C. Das Gupta : AIR1953Cal289 . A public body need not necessarily be constituted by a statute. It may be set up by Government in exercise of its executive function. In the above case, it appeared that the State Medical Faculty had received statutory recognition, and the power of conferring medical degrees Or diplomas had been entrusted to this body by the Indian Medical Degrees Act (Act 7 of 1916). It Was held that a Writ in the nature of mandamus would lie against such a body. The question is whether the Managing Committee of a private school, is a 'public body'. Upon this point the first case cited is Manmatha Nath Naiya v. Secy. Diamond Harbour H. E. School, 62 Cal WN 384. The facts of that case wore shortly as follows : The petitioner in that case was appointed as a physical instructor in the Diamond Harbour H. E. School by the Governing Body of the said school. He was served with a notice by the Secretary of School to the effect that the Governing Body had passed a resolution discharging him from service, for the reason that he had not passed the Matriculation Examination and, therefore, was not sufficiently qualified, in accordance with Ihe instrtctions issued by the Board of Secondary Education. The teacher made an application under Article 226 of the Constitution. The first point taken on behalf of the respondents was that, although the school was aided by Government, the Managing Committee of the school was a private body and was not a 'person' or 'authority' within the meaning of the expression as used in Article 226. Bose, J. (as he then was) after discussing the authorities on the point said as follows:

'It is therefore clear from the decisions cited above that unless the persons against whom a Writ in the nature of mandamus is sought, hold offices of a public nature, the Court has no jurisdiction to issue such a writ. It appears to me therefore, that the present petition in so far as it seeks a writ in the nature of mandamus is not maintainable.'

5. It was held that the Managing Committee of an aided school was a private body, and at best there was a breach of contract between the teacher and the Managing Committee, for which an ordinary legal proceeding will He. The application for a writ under Article 226 of the Constitution was dismissed. In the present case, I do not find from the materials before me that the school is aided by Government. It appears to be a school sponsored by the 'Bara Sikh Sangat' of Calcutta, a religious association of members of the Sikh community. The principal source of its subsistence appears to be private donations. However, evenif it was aided, it would not make much difterence.

This very point was decided by Bose, J. (as he then was) in the case cited above. I, however, find that there is another decision of Mukharji, J. Mira Chatterjee v. Public Service Commission : AIR1958Cal345 where it was inter alia observed that an aided school was a 'public institution' within the meaning of that expression as used in Article 321 of the Constitution. Under Article 321, the Government, by legislation, may extend the functions of the Public Service Commission, in respect of the services of any local authority or other body corporate constituted by law or by any public institution. In such a case, the word 'public institution' has been given a liberal interpretation. However, it does not necessarily follow that the Managing Committee of a private school should be considered as a 'public body' discharging public functions, or that the Vice-President held a public office, discharging duties imposed by statute. The decision of Bose, J. (as he then was) cited above, covers the point. I might here also cite another decision of Bose, J. (as he then was--Amarendra Chandra v. Narendra Kumar : AIR1953Cal114 . The petitioner in that case was the father and guardian of two students studying in the Chakraberia School in South Calcutta. The application was under Article 226 of the Constitution for a writ in the nature of quo warranto calling upon the members of the Managing Committee to exhibit the authority under which they were functioning. It was alleged that the Managing Committee had been constituted illegally, although there was another Managing Committee which had been lawfully constituted in accordance with the Revised School Code framed by the University of Calcutta. It was contended on behalf of the respondents that the Revised School Code had no statutory force, and the office held by the respondents was neither a statutory office nor an office calling for the discharge of a public duty. The learned Judge said as follows:

'The Chakraberia High School is a private institution which imparts education to students of that school and receives fees from the students for imparting such education. The Managing Committee of the school is not the creature of any statute but it is constituted according to certain rules framed for the purpose of constituting such Committee. The rules have no statutory force, but are domestic rules governing the internal affairs of the school, Even the Revised School Code, which docs not appear to have any statutory force, has no application to the constitution of the Managing Committee of this school. It is true that a small section of the public, viz., the students and their guardians are interested as such in the school but that does not bring the office of the members of the Managing Committee within the category of an office which can be described as office of a public nature. It appears to me that the offices held by the respondents are not offices in respect of which a writ of qua warranto lies.'

6. Although this is not an application for the issue of a writ of quo warranto, the position is the same in the case of a writ in the nature of mandamus, because such a writ issues only in respect of persons holding an office of a public nature, inrespect of the discharge of public or statutory duties. The next point to be considered is as to whether the Revised School Code has statutory force. I have already made a quotation from : AIR1953Cal114 (supra) in which Bose, J. (as he then was) held that the Revised School Code did not appear to have any statutory force. I shall now proceed to consider the arguments put forward by Mr. Dutt with regard to the Revised School Code. As I have mentioned above, his case is that the Revised School Code has statutory force. He starts with a compilation issued by the Government of Bengal, called the 'Bengal Education Code', which was published in the year 1931. The introduction to the said compilation itself shows that it did not consist of statutory rules. It shows that the Code was compiled chiefly by one Mr. J.C. Cuzen who was specially deputed, for that purpose. Mr. Dutt has referred me to the Grant-in-aid Rules for Schools contained at page 346 onwards in the said Code. At page 351, there is a reference to the provisions of the School Code recognised by the University of Calcutta in 1930. In fact, the Revised School Code of 1930, as issued by the University of Calcutta, is set out in appendix K at page 369. There is, however, nothing to show that these rules when recognised in 1930 were statutory rules. On the other hand, regard being had to the nature of the Educational Code compiled by the Province of Bengal in 1931, the Revised School Code also seems to be a domestic body of rules. All that appears is that the University of Calcutta had a School Code in 1930, which was thereafter revised and called the Revised School Code. Mr. Dutt next endeavoured to show that many of the rules contained in the Revised School Code, correspond to the regulations framed by the Syndicate of the said University. Under the Indian Universities Act (Act No. VIII) of 1904, Section 25 (2) (provides that the Senate, with the sanction of the Government may from time to time make regulations consistent with the Act of Incorporation to provide for all matters relating to the University. In particular, such regulations may provide for the conditions to be complied with by schools desiring recognition for the purpose of sending up candidates for examination. The Senate has from time to time made regulations. Chapter XXI of the Regulations published by the University of Calcutta relates to 'Recognition of Schools and withdrawal thereof'. Mr. Dutt points out that this Chapter has been set out in Chapter II of the 'Handbook of Information'. In my opinion, this argument is based on a misconception. The 'Handbook of Information' issued by the University of Calcutta contains the Revised School Code and also various other matters. The Revised School Code is contained in Chapter I. Chapter II is a reproduction of Chapter XXI of the Regulations. In fact, it says so in the description appended to the Chapter. Chapter III consists of extracts from circular letters and Standing Orders and so forth. We are not concerned with any other Chapter except Chapter I, which consists of the Revised School Code. There is nothing to show that the Revised School Code had any statutory force or was introduced by any statute or regulation framed under a statute. The result is that this petition fails on both these points. Firstly, it is not established that the Revised School Codeis a body of statutory rules and secondly, it is not established that the Managing Committee or the members thereof of a private school can be held to be a 'public body' carrying out public duties. Therefore, it is not possible to issue a writ in the nature of mandamus in such a case, against the said Managing Committee or the members thereof, for infringement of a rule incorporated in the Revised School Code. The position of the Revised School Code subsequent to the coming into operation of the West Bengal Secondary Education Act, 1950 has been explained by me in C. R. No. 1446 of 1959--Santosh Kumar Mukherjee v. Dr. Amar Nath Mukherjee Judgment dated 6-6-61 (Cal). As I have pointed out there, the West Bengal Secondary Education Act contemplates the framing of rules and regulations. Such rules and regulations have to be framed in a particular manner. In spite of repeated requests by the Board, the Government had not sanctioned the necessary rules prior to 1960. The result was that the Board had been following the Revised School Code to a certain extent. It was however a purely domestic arrangement, and all the provisions of the Revised School Code were not followed. By circulars issued from time to time they were varied. In any event, before 1960 there was nothing that could be said to have the force of statutory rules.

7. In my opinion, therefore, these two preliminary points taken by Mr, Ray ought to succeed. Even on the facts, I do not see that there is much ground for interference. Although there was not a strict compliance with Rule 33 of the Revised School Code, the Managing Committee subsequently endorsed the conduct of the Vice-President. In the case of a private school, the Court ought not to take too technical a view of the administrative procedure. There is no prayer in this application for quashing the said resolution. At best, there was a contract of service between the petitioner and the Managing Committee or the school and if there has been any violation thereof, the petitioner should exercise his ordinary legal remedies by way of a suit. An application in this jurisdiction ought not to be entertained.

8. The result is that this application fails. The Rule is discharged. Interim orders, if any, are vacated. There will be no order as to costs.


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