Dhata Intermediate College and Others vs Brahma Nand Singh and Others

G.C. Mathur, J.—This is an appeal against the judgment of a learned Single Judge allowing the writ petition filed by Respondent No. 1 and quashing the order of dismissal passed against him.

Respondent No. 1 was Head Clerk in the Dhata Intermediate College, Fatehpur. The Management held an enquiry into certain charges against him and finding him guilty of the charges passed an order on August 14, 1974, dismissing him from service. The Management submitted its proposal to dismiss the Respondent No. 1 from service to the District Inspector of Schools for his approval. By order dated October 21, 1974, the District Inspector of Schools refused to grant the approval. Inspite of the refusal of approval of the District Inspector of Schools, the Management maintained its order of dismissal against the Respondent No. 1. He thereupon filed a writ petition in this Court.

The Appellant College is undoubtedly governed by the Intermediate Education Act, 1921. Though Section 16-G(3) of the Act provides that no Principal, Head Master or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments or served with notice of termination of service, except with the prior approval in writing of the District Inspector of Schools, there is no such provision in respect of clerks or Head Clerks. Chapter III of the Regulations which deal with the condition of service also does not provide for the approval of the Inspector of Schools before the termination of the service of a clerk or Head Clerk. The only provision on which the Respondent No. 1 relied was Rule 143(1) of the U.P. Education Code, the relevant portion of which reads thus:

143(1). No Head Master/Principal/Teacher/Clerk, with whom the agreement in the prescribed form has not been executed, may be dismissed, removed, suspended or discharged from service, without the prior approval of Inspector/Inspectress.

This rule certainly provides that a clerk shall not be dismissed from service, without the prior approval of the Inspector.

The learned Single Judge relying upon the decision of a Division Bench of this Court in Manager, Shanta Nand Swatantra Bharat Inter College v. Kamla Rai 1972 ALJ 933 held that once the approval was refused by the Inspector, the order of dismissal automatically stood set aside and since the management did not file any appeal against the order of the Inspector, the Inspector''s order became final and the Petitioner was entitled to be reinstated. The objection of the Management that Rule 143(1) was not statutory was also repelled by the learned Single Judge on the basis of Kamla Rai''s case. The learned Single Judge, accordingly, allowed the writ petition and quashed the Order of dismissal.

The powers of Courts to grant a declaration to enforce a contract of personal service is very limited. In Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi, the Supreme Court has laid down that such a declaration can be granted only in the following cases:

(i) where a public servant is dismissed from service in contravention of the provisions of Article 311(2) of the Constitution;

(ii) in cases of reinstatement of a dismissed workman under the Industrial law by labour or Industrial Tribunals; and

(iii) where a statutory body has acted in breach of a mandatory obligation, imposed by some statute.

The present case does not fall within the first two categories and can only fall within the third category, if the two conditions are satisfied, namely, that the dismissal order has been passed by a statutory authority and the statutory authority has acted in violation of some statutory provision.

On the strength of the decision of a Full Bench of this Court in Vaish College (Society) Shamli v. Lakshmi Narain AIR 1974 All. 1 it was urged by the learned Counsel for the Respondent No. 1 that the Managing Committee of the Appellant College was a statutory body. We are not inclined to agree with his contention in view of the decision of the Supreme Court in Kumari Regina Vs. St. Aloysius Higher Elementary School and Another, . But we shall proceed on the basis that the Managing Committee of the Appellant College is a statutory body. The question which then arises for consideration is whether Rule 143(1) is a statutory rule or not. There is no doubt that the provisions of the Education Code including 143(1) Were mere executive instructions and were not statutory rules in the sense of haying been made under the provisions of some statute, They were framed primarily to lay down conditions for recommendations of grant-in-aid to private institution. They also lay down terms and conditions upon which the recognised or aided institutions will employ teachers etc. By themselves these rules do not confer any right upon the employee of a private institution to enforce them. It was urged that by virtue of Rule 2 of Chapter XVII of the Regulations framed under Intermediate Education Act the Rules in the U.P. Education Code have become statutory rules. The heading of Chapter XVII is "Miscellaneous". Rule 2 is in these words:

The rules of the Educational Code of Uttar Pradesh, shall apply to all institutions recognised by the Board in so far as they are inconsistent with these regulations.

It is urged that by virtue of this Rule, Rule 143 of the Educational Code has become part of the Regulations and, therefore, has become a statutory rule. In Managing Committee of Krishak Higher Secondary Schools Raisi v. Isham Singh 1965 ALJ 1116 D.S. Mathur, J. (as he then was) accepted this contention and held that the whole of the Educational Code shall be a part of the Regulation and disregard thereof shall amount to disregard of statutory provisions. This decision was not approved by a Division Bench of this Court in Muslim Association, Kanpur v. Hamid Hussain Second Appeal No. 831 of 1970 decided on February 25, 1972 (Alld.). The Division Bench observed that simply because a regulation framed by the Board provided that the rules of the Educational Code shall apply to the recognised institutions will not alter the character of the rules of the Education Code and that those rules will continue to be what they were namely, departmental instructions. This question has not been considered in the case of Kamla Rai, upon which the learned Single Judge has placed reliance.

We have examined this question ourselves and for the reasons to be indicated hereafter have come to the conclusion that Rule 2 of Chapter XVII of the Regulations does not make Rule 143(1) of the Educational Code applicable statutory. The Intermediate Education Act, 1921, before its amendment in 1958 did not deal, at all, with the service conditions of either teachers or clerks. It was only concerned with the constitution of the Board of High School and Intermediate Education, its powers and duties etc. It contained no provision, whatever, in respect of teachers or other employees of the institutions which were to be governed by the Act. Chapter XVII including Rule 2 thereof was framed sometime before the amendment of 1958. The Intermediate Education (Amendment) Act, 1958, introduced Sections 16-A to 16-I in the Intermediate Education Act. These newly added sections made provisions in respect of the institutions which were governed by the Intermediate Education Act. Sections 16A, 16B and 16C made provisions regarding the Scheme of Administration of the institution. Section 16D provided for the inspection of recognised institutions, removal of defects and appointment on Authorized Controllers. Sections 16E and 16F made provisions for appointment of Principals, Head Masters and Teachers of recognised institutions. Section 16G provided for the condition of service of teachers. Section 16H made certain exemptions from the above mentioned provisions and Section 16-I provided for delegation of powers. Thus, for the first time, the provisions regarding appointment of principals, Head Masters and Teachers and for their terms and conditions were introduced in the Act in the year 1958. Section 8 of the Amendment Act made transitory provisions regarding the making of Regulations. Sub-section (1) of this Section reads:

8 (1). Notwithstanding anything in the principal Act, it shall be lawful for the State Government to make, within one year from the commencement of this Act, Regulations in respect of matters covered by Sections 16-A to 16-I and every Regulation so made by the State Government shall continue to remain in (sic) it is superseded by anything done or action taken under the Principal Act as amended by this Act.

Under this power the State Government framed regulations which are contained in Chapters II and III of the Regulations. Of these Chapter III contains regulations made u/s 16-G relating to conditions of service. This does not contain any provision regarding the termination of services of clerks etc., but deals only with the termination of services of Principals, Head Masters and Teachers only.

It has already been said above that Chapter XVII including Rule 2 thereof was framed by the Board sometime before 1958 when the Act did not, at all, deal with the teachers or other employees of recognised institutions. The power to make regulations was conferred upon the Board by Section 15, which provided that the Board may make regulations for the purpose of carrying into effect the provisions of this Act. Since the provisions of the Act were not concerned with the teachers and other employees of the recognised institutions, no power was conferred on the Board to make regulations in this respect. The regulations made by the Board before the Amending Act 1958 could not and did not relate to the term and conditions of teachers and other employees like clerks and Head Clerks. Therefore, Rule 2 of Chapter XVII when it stated that the rules of the Educational Code shall apply to all recognised institutions referred only to such rules as related to the provisions then contained in the Intermediate Education Act. It did not and could not refer to Rule 143(1), which related to terms and conditions of teachers and clerks, as this matter was outside the scope of the Act and of the regulations at the time when these regulations were made. For this reason we are of opinion that Rule 2 of Chapter XVII of the Regulations did not incorporate by reference Rule 143(1) of the education Code in the Regulations themselves and did not make it statutory. Rule 143(1) of the Education Code remains an executive instruction and cannot be given the status of a statutory rule.

The entire case of Respondent No. 1 is based upon the violation of Rule 143(1) of the Education Code. Since this rule is not statutory, even if we (assume that) College is a statutory body, it cannot be said that the order of dismissal against the Respondent No. 1 has been passed by a statutory body in violation of statutory rules. The case of Respondent No. 1 is, therefore, not covered by third category of cases referred to by the Supreme Court. That being so, the order of dismissal passed by the Appellant College against the Respondent No. 1 cannot be quashed by this Court.

The appeal is, accordingly, allowed, the order of the learned Single Judge is set aside and the writ petition filed by the Respondent No. 1 is dismissed. The parties will bear their own costs of this appeal as well as of the writ petition.