Case: Regina Vs. St. Aloysius Higher Elementary School & Anr

Shelat, J.1. Prior to June 1, 1955, the appellant was working as the Head Mistress in the respondent school. On April 22, 1955, the management of the School served certain charges on her and called upon her to reply to the same. Her reply was found to be unsatisfactory, and thereupon, by an order passed by the management on June 1, 1955 she was reduced to the position of an Assistant Teacher. She thereafter filed an appeal against the management before the District Educational Officer, South Kanara. Her appeal was rejected. A further appeal by her before the Divisional Inspector of Schools, Coimbatore, succeeded and the Divisional Inspector directed the management to restore her to her original position as the Head Mistress. The Management declined to do so and she filed the suit from which this appeal arises.2. The suit was on the basis that since the school had obtained recognition and grant-in-aid under the Madras Elementary Education Act, VIII of 1920, and the rules made therefor by the Government, it was under the supervision first of the Education Department of the Madras Government and after reorganization of States, that of the Mysore Government. According to her, the Act and the said rules were binding on the school and gave her a right to enforce against the management the said order of the Divisional Inspector. The order reducing her to the position of an assistant teacher stood vacated by the order of the Divisional Inspector and the respondent school, therefore, was bound to comply with that order and restore her to the position of the Head Mistress. The management contested the suit, maintaining that the order of reduction passed by it was within its power, that there was nothing in the Act or the rules which warranted nay interference with its right of internal management of the school and gave no right to the appellant to enforce in a court of law the order passed by the Divisional Inspector, that order being only a matter between the Education Department and the management.3. The Trial Court accepted the schools contention and dismissed the suit. In an appeal against that dismissal, the District Judge took a different view and held that the order of the Department was legally enforceable by the appellant since it was passed in an appeal provided by the said rules. He set aside the dismissal of the suit and passed a decree in favour of the appellant. On a second appeal by the school, the High Court went into the legislative history of the Act and on an examination of the rules accepted the contention of the management that the relationship between the parties was that of master and servant and no mandatory injunction could be issued directing restoration of the appellant as the Head Mistress as that would be tantamount to specific performance of a contract of personal service not permissible under S. 21 (b) of the Specific Relief Act, 1877. The High Court also held that the rules, under which the appellant had filed the said appeal and the said order was made, were only administrative instructions by the Government to its educational officers and not statutory rules which would give rise to a remedy enforceable at law at the instance of an employee of a school aggrieved against its management. Against this judgment, the appellant obtained special leave from this Court and filed this appeal.4. The appeal first came up for hearing in March 1970 before Shah, J. (as he then was) and Grover, J. Not satisfied with the record before them, the learned Judges postponed the hearing of the appeal and called for a report from the Trial Court on certain matters found wanting in the record. In accordance with that order, the Trial Court took additional evidence, both oral and documentary, and despatched its report along with a copy of the rules, the Madras Gazette in which they were published and certain other materials. From those materials as also from the judgment of the Kerala High Court reported in Joseph v. State of Kerala, AIR 1958 Ker 290 it is possible to trace the changes which the Act and the rules have undergone from time to time. Such a legislative history of the Act is important to a certain extent as it throws light on the character of the rules and the power under which they were framed from time to time.5. Counsel for the appellant urged that in spite of the changes made from time to time in the Act, the rules with which we are concerned in this appeal have retained their original character of being statutory rules. They must, therefore, be held to have been made under Section 56 and particularly under Cl. (h) of its sub-section (2) which empowers the Government to make rules in respect of recognition as an elementary school and the aid which the Government gives to it from public funds. The argument was that despite the changes in the Act, particularly the deletion of certain provisions of the Act, to which we shall presently come, the definition of an elementary school in the Act takes in schools recognised by the Director of Public Instruction of the State Government, and since such a recognised school is the essence of the scheme of elementary education provided by the Act, the rules have to be treated as statutory rules made under cl. (h) of S. 56 (2) which is still retained in the Act.6. Before we proceed to consider these contentions, it is necessary to examine briefly the Act and its legislative history.7. The Act was first passed as Madras Act, VIII of 1920, and then contained seven chapters with 56 Sections. It underwent several changes from time to time and particularly when the Madras Elementary Education (Amendment) Act, II of 1939 was passed by which Chapters II, IV, VI and S. 55 in Ch. VII were deleted.8. The Act was passed with the object of making better provisions for elementary education and envisaged imparting of such education through elementary schools, including those run by private managements, but recognised by Government through its Education Department. Section 3 (vi) of the Act defines such an elementary school as one recognised by the Director of Public Instruction or by such authority as may be empowered by him in that behalf. Section 56 authorises the Government to make rules not inconsistent with the provisions of the Act "to carry out all or any of the purposes of this Act", and in particular cl. (h) of sub-s. (2) for "declaring the conditions subject to which schools may be admitted to recognition or aid." Ch. II, before its deletion in 1939, provided for the constitution of District Educational Councils, their duties, their funds, budget and audit. Ch. VI, by Sections 41 to 43 in it, dealt with recognition of schools and admission of private managed schools to grants-in-aid. These chapters, as stated earlier, were repealed in 1939.9. The Rules were first framed in 1922 under S. 56 and contained provisions regarding recognition and aid. These Rules were clearly statutory rules. Curiously, although Chs. II and IV were deleted in 1939, cl. (h) of S. 56 (2) was allowed to remain in the Act. It appears that the rules regulating recognition and aid were framed in 1922 because so long as Chs. II and IV were in the statute, they had to be made to implement the purposes set out in those chapters. But with the repeal of those chapters those Rules could not be continued as they could no longer be regarded as rules for carrying out the purposes of the Art as S. 56 (1) enjoins. The Madras Government appears to have appreciated such a result arising from the repeal of those chapters, and therefore, reframed the rules and published them in the Gazette of August 29, 1939. The new Rules were divided into two parts. The first part contained rules dealing with matters provided for in sections 3 (i) (v) and (viii), S. 36 (1) and (2), S. 44, S. 48, S. 50 (iii) and (v) and S. 51. Part II Rules did not set out or refer to any of the sections in the Act as Part I Rules did. The reason was that rules in Part II dealt with recognition and aid in respect of which there were, after the 1939 amendment, no corresponding provisions in the Act. It is also of some significance that when published in 1939 the rules in Part I were headed "Rules framed under the Madras Elementary Education Act, 1920", while the rules contained separately in Part II were not given any such heading or title. Further, it appears that when these Part II Rules were published in August 1939 there was no previous publication of them as required by S. 56 (1) of the Act.10. Chapter I in Part II Rules deals with recognition. The power to grant or withdraw such a recognition is conferred on the officers of the Education Department. Under R. 5, applications for recognition of schools or additional standards in such schools are to be made to the District Educational Officer. An appeal is provided against his decision before the Divisional Officer. The rules then lay down certain requirements on the basis of which recognition would be given or withheld. Rule 13 (1) provides, inter alia, for the maintenance of a teachers service register by the manager of the school specifying therein the terms of service under which a teacher is recruited. The register would include particulars showing whether a teacher is appointed temporarily or on probation or on a permanent basis, his salary, the scale of pay, if any, etc. Under the rule, the manager has to get the register countersigned by the Deputy Inspector of Schools. The rule further provides that no qualified teacher can be appointed on a temporary basis or for a stipulated period. All appointments to permanent posts have initiatally to be made on probation and on expiry of the probation period the teacher would be deemed to be permanent. Clause (2) of R. 13 provides that no teacher can leave the service of a school without giving three months notice, or three months salary in lieu thereof. Under sub-cl. (ii) of cl. (2) of that rule, the management has the power to terminate the service of any member of the staff whether permanent, temporary or probationary, without any notice on the grounds set out therein. But, three months, notice would be required if the termination of service is for reasons other than those set out in sub-cl. (ii), e.g., for wilful neglect of duty, serious misconduct, gross insubordination, incompetence etc. The first proviso to sub-cl. (ii) requires, however, that before such notice of termination is given the teacher has to be informed in writing of the charges against him and a reasonable opportunity to be heard has to be given to him. The second proviso to that sub-clause requires the management to consult the Deputy Inspector and obtain his approval about the propriety of the action proposed against a teacher.The rule then provides:When, on a teachers appeal, the District Educational Officer orders reinstatement, the management shall forthwith reinstate him within 10 days of the receipt of the orders, notwithstanding a further appeal submitted or proposed to be submitted by the management to the Divisional Inspector and shall inform in writing the Deputy Inspector of Schools and the District Educational Officer of the fact of having done so. Failure to comply with such orders of the District Educational Officer may entail action against the management under Rule 14 below."Sub-cl. (vi) of Rule 13 (2) provides for appeals, first, before the District Educational Officer, and then, before the Divisional Inspector of Schools. Under Rule 14, the Director of Public Instructions has the power to declare, after enquiry, a teacher to be unfit for employment in a recognised school. Under Rule 14-A, he can refuse or withdraw recognition from a school in which is employed a teacher whom he has declared to be unfit, or when the school is under the management of a person declared unfit by him. Recognition can also be withdrawn under Rr. 26 to 28, 28-A and 28-B on the grounds set out therein Ch. II of Part II Rules contains rules in regard to aid, such as teaching grants, maintenance grant etc., and Ch. III contains rules with regard to grants for school buildings, building sites and play-grounds.11. Chapters II and IV of the Act, which contained provisions to recognition and aid, having been repealed, these rules, re-issued and published afresh in August 1939, cannot be said to be rules "to carry out all or any of the purposes of this Act", as provided by S. 56 (1).No doubt, cl. (h) of sub-s. (2) of S. 56 was still retained even after Chs. II and IV were deleted, and therefore, the Government could perhaps claim to have the power to frame statutory rules "declaring the conditions subject to which schools may be admitted to recognition or aid". But even if the Government were to claim to have framed rules under the sanction contained in cl. (h) of S. 56 (2), such rules would not satisfy the condition precedent for such rule-making, namely, that they can be made only "to carry out all or any of the purposes of this Act". Such rules, therefore, even if made, would not be rules made under S. 56. Besides, the fact is that when Part II Rules were published in the gazette of August 28, 1939, they were not claimed to have been made under the power reserved to the Government under S. 56. If they were claimed to have been so made, they would, firstly, have been pre-published as required by S. 56 (1), and secondly, the Government would not have made the distinction between Part I and Part II Rules, which it did, by giving a title to the former, namely, that they were made under the Act, and omitting to give such a title to the latter. These facts support the contention of the respondent-school that Part II Rules cannot be said to be statutory rules framed under S. 56, although the power to make such rules is still retained with the Government by reason of cl. (h) being still there in S. 56 (2).12. Ordinarily, the relations between the management of an elementary school and the teachers employed in it would be governed by the terms of the contract of employment and the law of master and servant in the absence of any statute controlling or abrogating such a contract of employment and providing to the contrary. The mere fact that such a school has obtained recognition and aid from the education department would not mean that the relationship between its management and its employees has ceased to be governed by the contracts of employment under which the employees are recruited and by the law of master and servant unless there is some provision in the Act overriding that law as one finds in statutes dealing with industrial disputes and similar other matters. There is in fact no such provision in the Act and none was pointed out to us. The result is that the relations between the management and the teachers even in a recognised elementary school have to be regarded as being governed by the contracts of employment and the terms and conditions contained therein. Part II Rules, which cannot be regarded as having the status of statutory rules made under S. 56, cannot be said to have the effect of controlling the relations between the management of a school and its teachers or the terms and conditions of employment of such teachers or abrogating the law of master and servant which ordinarily would govern those relations.13. But it cannot also be gainsaid that as the Govt. has the power, to admit schools to recognition and grants-in-aid, it can, de hors the Act, lay down conditions under which it would grant recognition and aid. To achieve uniformity and certainty in the exercise of such executive power and to avoid discrimination, the Government would have to frame rules which, however, would be in the form of administrative instructions to its officers dealing with the matters of recognition and aid. If such rules were to lay down conditions, the Government can insist that satisfaction of such conditions would be condition precedent to obtaining recognition and aid and that a breach or non-compliance of such conditions would entail either the denial or withdrawal of recognition and aid. The management of a school, therefore, would commit a breach or non-compliance of the conditions laid down in the rules on pain of deprivation of recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these rules upon the management. But the enforcement of such rules is a matter between the Government and the management, and a third party, such as a teacher aggrieved by same order of the management, cannot derive from the rules any enforceable right against the management on the ground of a breach or non-compliance of any of the rules. To illustrate the point, suppose the management of a school were to terminate the service of a teacher after giving one months notice, or one months salary in lieu thereof in accordance with the contract of employment between the teacher and the management, such a termination would be valid. But the Government can insist that since its rules provide for three months notice, the management cannot terminate the service of a teacher by giving only one months notice. Though, in the absence of a statutory provision having the effect of controlling or superseding the contract of employment agreed to between the parties, the termination would in law be valid, nevertheless, the Government can withdraw, under Part II Rules, the recognition and aid it has given to the school since its rules governing recognition and aid were not complied with. But that does not mean that Part II Rules confer upon a third party, viz., an aggrieved employee of a school, any remedy enforceable at law in the event of the management of an elementary school refusing to comply with these rules which, inter alia, enjoin upon a school to abide by the directions given thereunder by the education officers of the Government named therein.14. In the absence of any provision in the Act governing the relations between the management and a teacher employed by it or controlling the terms of employment of such a teacher and Part II Rules not being statutory rules, the appellant could not be said to have had a cause of action for enforcing the directions given by the Divisional Inspector to restore her as the Head Mistress in the appeal filed by her. Appeals against orders passed by the management against a teacher are provided for under R. 13 so as to enforce the satisfaction of conditions under which recognition and aid would be granted or withdrawn, and not for regulating, as between the teacher and the management, the relations of master and servant arising under the contract of employment.15. In AIR 1958 Ker 290 the Kerala High Court had to consider the question of these rules being statutory or not as one of the schools, whose writ petition among others it was trying, was governed by the Madras Elementary Education Act, 1920 and the rules made by the Madras Government. After tracing the legislative history of the Act, as also of the rules, the High Court held that Part II Rules did not have any statutory origin, and were, therefore, only administrative instructions by the Government to its educational officers, and therefore, did not vest in the school any statutory right for grants-in-aid. This decision was later approved by a full bench of that High Court in Chandrasekharan Nair v. Secy. to Govt. of Kerala, AIR 1961 Ker 303 (FB) where that Court once again held that Part II Rules were administrative rules. Similarly, in Ramaswami Ayyangar v. State of Madras, 1962-1 Mad LJ 269 = (AIR 1962 Mad 389 ) the High Court of Madras negatived the contention that these rules, dealing with recognition and aid, could be invoked by an employee against the management of a private elementary school to enforce a right allegedly arising under the rules. The High Court held that the rules were not statutory rules, and that therefore, they could not enlarge the scope of the contract of employment between such an employee of the school and the management embodied in the school register, and that the rules affected the relations between the school and the Government, and not a third party. In Govindaswami v. State of Andhra, 1962-1 Andh WR 263 a learned Single Judge of the Andhra High Court, took the view that the powers and functions of the States educational officers under these rules in relation to recognition and aid were quasi judicial and held that these rules were statutory rules. But this view was on an assumption that even Part II. Rules were made under S. 56 (2) (h) of the Act, such an assumption was made without any enquiry whether they were so made and without taking into account the fact of the deletion of Chs. II and IV from the Act in 1939, and its impact on the rule-making power of the Government, the re-issuance of the rules thereafter and the distinction made by the Madras Government itself between Part I and Part II Rules in the headings which it gave to those two parts. The mere recent view of the Andhra High Court, however, is reflected in Moss v. Management of St. Patritcks High School Secunderabad (1970) 2 Andh WR 157 where a Division Bench of that High Court had held that Part II Rules relating to recognition and aid are not statutory rules but are only executive instructions, and therefore, are not legally enforceable in a Court of law.

Decision:
0[ds]12. Ordinarily, the relations between the management of an elementary school and the teachers employed in it would be governed by the terms of the contract of employment and the law of master and servant in the absence of any statute controlling or abrogating such a contract of employment and providing to the contrary. The mere fact that such a school has obtained recognition and aid from the education department would not mean that the relationship between its management and its employees has ceased to be governed by the contracts of employment under which the employees are recruited and by the law of master and servant unless there is some provision in the Act overriding that law as one finds in statutes dealing with industrial disputes and similar other matters. There is in fact no such provision in the Act and none was pointed out to us. The result is that the relations between the management and the teachers even in a recognised elementary school have to be regarded as being governed by the contracts of employment and the terms and conditions contained therein. Part II Rules, which cannot be regarded as having the status of statutory rules made under S. 56, cannot be said to have the effect of controlling the relations between the management of a school and its teachers or the terms and conditions of employment of such teachers or abrogating the law of master and servant which ordinarily would govern those relations.13. But it cannot also be gainsaid that as the Govt. has the power, to admit schools to recognition andit can, de hors the Act, lay down conditions under which it would grant recognition and aid. To achieve uniformity and certainty in the exercise of such executive power and to avoid discrimination, the Government would have to frame rules which, however, would be in the form of administrative instructions to its officers dealing with the matters of recognition and aid. If such rules were to lay down conditions, the Government can insist that satisfaction of such conditions would be condition precedent to obtaining recognition and aid and that a breach orof such conditions would entail either the denial or withdrawal of recognition and aid. The management of a school, therefore, would commit a breach orof the conditions laid down in the rules on pain of deprivation of recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these rules upon the management. But the enforcement of such rules is a matter between the Government and the management, and a third party, such as a teacher aggrieved by same order of the management, cannot derive from the rules any enforceable right against the management on the ground of a breach orof any of the rules. To illustrate the point, suppose the management of a school were to terminate the service of a teacher after giving one months notice, or one months salary in lieu thereof in accordance with the contract of employment between the teacher and the management, such a termination would be valid. But the Government can insist that since its rules provide for three months notice, the management cannot terminate the service of a teacher by giving only one months notice. Though, in the absence of a statutory provision having the effect of controlling or superseding the contract of employment agreed to between the parties, the termination would in law be valid, nevertheless, the Government can withdraw, under Part II Rules, the recognition and aid it has given to the school since its rules governing recognition and aid were not complied with. But that does not mean that Part II Rules confer upon a third party, viz., an aggrieved employee of a school, any remedy enforceable at law in the event of the management of an elementary school refusing to comply with these rules which, inter alia, enjoin upon a school to abide by the directions given thereunder by the education officers of the Government named therein.14. In the absence of any provision in the Act governing the relations between the management and a teacher employed by it or controlling the terms of employment of such a teacher and Part II Rules not being statutory rules, the appellant could not be said to have had a cause of action for enforcing the directions given by the Divisional Inspector to restore her as the Head Mistress in the appeal filed by her. Appeals against orders passed by the management against a teacher are provided for under R. 13 so as to enforce the satisfaction of conditions under which recognition and aid would be granted or withdrawn, and not for regulating, as between the teacher and the management, the relations of master and servant arising under the contract of employment.15. In AIR 1958 Ker 290   the Kerala High Court had to consider the question of these rules being statutory or not as one of the schools, whose writ petition among others it was trying, was governed by the Madras Elementary Education Act, 1920 and the rules made by the Madras Government. After tracing the legislative history of the Act, as also of the rules, the High Court held that Part II Rules did not have any statutory origin, and were, therefore, only administrative instructions by the Government to its educational officers, and therefore, did not vest in the school any statutory right forThis decision was later approved by a full bench of that High Court in Chandrasekharan Nair v. Secy. to Govt. of Kerala, AIR 1961 Ker 303   (FB) where that Court once again held that Part II Rules were administrative rules. Similarly, in Ramaswami Ayyangar v. State of Madras,Mad LJ 269 = (AIR 1962 Mad 389  ) the High Court of Madras negatived the contention that these rules, dealing with recognition and aid, could be invoked by an employee against the management of a private elementary school to enforce a right allegedly arising under the rules. The High Court held that the rules were not statutory rules, and that therefore, they could not enlarge the scope of the contract of employment between such an employee of the school and the management embodied in the school register, and that the rules affected the relations between the school and the Government, and not a third party. In Govindaswami v. State of Andhra,Andh WR 263 a learned Single Judge of the Andhra High Court, took the view that the powers and functions of the States educational officers under these rules in relation to recognition and aid were quasi judicial and held that these rules were statutory rules. But this view was on an assumption that even Part II. Rules were made under S. 56 (2) (h) of the Act, such an assumption was made without any enquiry whether they were so made and without taking into account the fact of the deletion of Chs. II and IV from the Act in 1939, and its impact on thepower of the Government, theof the rules thereafter and the distinction made by the Madras Government itself between Part I and Part II Rules in the headings which it gave to those two parts. The mere recent view of the Andhra High Court, however, is reflected in Moss v. Management of St. Patritcks High School Secunderabad (1970) 2 Andh WR 157 where a Division Bench of that High Court had held that Part II Rules relating to recognition and aid are not statutory rules but are only executive instructions, and therefore, are not legally enforceable in a Court of law.