Keshao Yeshwantrao Kotwal vs The Director of Education and others

A.A. Ginwala, J.—The petitioner was employed by respondent No. 4 as an Assistant Teacher with effect from 1-7 1952. He continued to serve with that institution till 23-6-1963. By its letter dated 15-6-1963 respondent No. 3 informed the petitioner that its managing committee had appointed him as Assistant Head Master of S.E.S. High School at Sakoli with effect from 24-6-1963 on monthly salary of Rs. 150/- plus C.C.L.A. of Rs. 50/-. Accordingly the petitioner started working in the school maintained by respondent No. 3. It is not disputed that respondents Nos. 3 and 4 are independent educational institutions. The case of the petitioner in brief is that he came to serve respondent No. 3 at its invitation keeping his lien on his service with respondent No. 4 for two years after which period it was to come to an end with the result that he would be in permanent employment of respondent No. 3. On the other hand the case of respondent No. 3 is that respondent No. 4 had sent the petitioner on deputation to work as an Assistant Teacher in its school and he was not appointed as Assistant Head Master, but was merely put in-charge of that post since having regard to the strength of the school in which he worked there could not have been a post of Assistant Head Master. It is contended by respondent No. 3 that due to some misconception on the part of its managing committee then the petitioner was designated as Assistant Head Master, which could not have been done under the Secondary Schools Code. For the reasons which we will state below we are not called upon to resolve this controversy between the petitioner and respondent No. 3.

To continue the narration of facts, on 17-4-1978 respondent No. 3 wrote to the Education Officer, Zilla Parishad, Bhandara (respondent No. 5) to approve the repatriation of teachers including the petitioner, who had come on deputation from respondent No. 4 to it. Under his letter dated 17-5-1978 respondent No. 5 informed respondent No. 3 that its action of repatriating the petitioner and one Joshi had been approved and sanctioned as their period of deputation had expired. The petitioner appealed to the Deputy Director of Education (respondent No. 2) against this approval on the part of the Education Officer. The Deputy Director by his order dated 16-6-1978 rejected the appeal of the petitioner and upheld the order of the Education Officer. In doing so, he held that respondent No. 4 had sent the petitioner and Joshi on deputation to respondent No. 3 and hence respondent No. 3 was justified in sending them buck to their original posts, He held that the order of respondent No. 3 asking the petitioner and Joshi to hand over their charge with effect from 17-6-1978 and go hack to their original posts and schools was quite regular and the concerned teachers should follow it immediately. The petitioner then moved the Director of Education (respondent No. 1) in further appeal, but by his communication dated 25-9-1978 the latter informed the petitioner that there is no provision under the Schools Code to send a teacher on deputation working in non-Government secondary school and as such the question of hearing the appeal did not arise. He further held that the decision given by the Deputy Director was according to the rules and, therefore, no interference was called for by him. Being aggrieved by the orders passed by respondents Nos. 1, 2 and 5 the petitioner has invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution with a prayer that they should be quashed.

In the petition the petitioner has challenged the impugned orders on merits and has also alleged that the so-called repatriation by respondent. No. 3 to respondent No. 4 has been manicured by the President of respondent No. 3 institution as the petitioner being a senior-most teacher in the school stands a good chance of being promoted as Head Master, which post was imminently falling vacant and the said President was interested in seeing that his son who is next to the petitioner should be appointed as Head Master. In short, therefore, the petitioner says that the action on the part of respondent No. 3 in seeking the petitioner to send him back to respondent No. 4 institution is mala fide and motivated.

Respondents Nos. 1 to 3 seek to justify the actions which were taken, on the ground that the petitioner had come on deputation from respondent No. 4 institution and respondent No. 3 was justified in sending him back to the institution in whose employment he is.

In the present petition, we are not concerned as to whether the petitioner when he took up the service with respondent No. 3 came on deputation as alleged by respondent No. 3 or Whether the petitioner took up the service with respondent No. 3 afresh keeping his lien on his service with respondent No. 4 for a period of four years and that after the expiry of that period of lien he became a permanent member of the staff of respondent No. 3, as alleged by the petitioner. These are mutters between the petitioner and respondents Nos. 3 and 4, and in this petition we are concerned only to judge the validity or otherwise of the orders which have been passed by respondents Nos. 1, 2 and 5. The learned counsel for the petitioner was at pains to submit that the said respondents had wrongly decided that the petitioner was on deputation with respondent No. 3. He further submitted that at any rate these respondents or for that matter respondent No. 5 had no power or authority to sanction or approve the action proposed to be taken by respondent No. 3 in sending the petitioner back to respondent No. 4 institution. The learned counsel submitted that the powers of respondents Nos. 1, 2 and 5 as educational authorities are regularised by the provisions continued in the Secondary Schools Code or instructions issued by the State Government from time to time. He submitted that there is neither any provision in the Secondary Schools Code nor are there any instructions issued by the State Government making it incumbent upon the management of a secondary school to obtain approval or sanction of the Education Officer when it sends back a teacher to another institution. In short, therefore, the learned counsel for the petitioner has assailed the impugned orders on the ground that they have been passed without any authority of law.

The learned Assistant Government Pleader, who appears for respondents Nos. 1-2, and has not been able to put his finger on any provision either in the Secondary Schools Code or in any other instrument empowering the Education Officer, the Deputy Director of Education or the Director of Education to approve or sanction the action of the Management of a school of repatriating or sending back a teacher to another school, who is on deputation from that school or is not so. Initially the petitioner had not impleaded the Education Officer, who passed the impugned order dated 17-5-1978. When we pointed out this omission to the learned counsel for the petitioners, the petition was amended and the said Education Officer was impleaded. It appears that he has not put in his appearance even though he has been served. We, therefore, did not have the benefit of his submission for justifying the action he had taken under the impugned order.

Mr. B.A. Udhoji the learned counsel for respondent No. 3 faced with this situation, tried to support the impugned order by referring us to sub-rule (1) of rule 71 in the Secondary Schools Code and para 16 in the Government resolution dated 29-5-1973, under which a scheme for payment of salary and allowances to teaching and non-teaching staff of aided non-Government Secondary Schools through Co-operative Banks has been formulated. Mr. Udhoji was, however, fair enough to say that besides these, he was not able to point out any provision, which would support the action taken by the said three officers under the impugned orders. We may state here that respondent No. 4 did not appear before us. The position, therefore, which emerges from what we have said above is that there is no specific provision in the Secondary Schools Code which empowers the above-said officers to sanction or approve the action of the management of a secondary school repatriating, transferring or sending back a teacher, who has been under it, to another educational institution. A mere glance at the provisions of the Secondary Schools Code would show that whenever it was intended that the management should obtain approval for any of its actions, specific provision has been made. As for example, under rule 61 (1) previous permission of the Director has to be obtained if the management intends to deviate from the procedure prescribed for appointment of head of the school. Again under rule 61(2) (ii) no candidate who does not hold qualifications land down in rule 61(2) (i) can be appointed as Head of the school without obtaining the previous approval of the Director. Further rule 63 (1)(i) requires the approval of the appropriate authority for appointment of supervisors. Similarly the appointment of an untrained teacher as permanent teacher requires the approval of the appropriate authority under rule 64. These instances can be multiplied with specific reference to the provisions contained in the Schools Code. It is, therefore, abundantly clear that the said authorities ate not invested with general or over-all power of supervision over the management of non-Government aided secondary schools by the institutions which run them. These institutions are autonomous bodies and have to function with the least amount of interference from the educational authorities. That is why while framing the rules the State Government has not invested the said authorities with all pervading powers, but has limited them to specific instances and actions on the part of the management. Simply because the Government bears practically whole of the expenditure in maintaining the schools, it does not mean that it has got the power to call the tune, since it is now well settled that the grant-in-aid which the Government gives to private educational institutions is not a bounty. The authorities concerned have to function within the bounds of the rules and regulations laid down by the State Government in this behalf. They cannot assume to themselves powers with which they are nos invested in the name of general supervisory control over the educational institutions, which receive the grant-in-aid from the Government. These uncontrolled powers are not only likely to be misused, but may also result in uncalled for interference with the day-to-day management of schools by the educational institutions which run them.

Sub-rule (1) of rule 71 of the Code on which reliance is placed by Mr. Udhoji states that all employees shall be subject to the general rules of discipline and conduct laid down by Government from time to time and such other rules and instructions as may be issued by the management as are not repugnant to the general rules prescribed by Government. We do not see that any power can be inferred from this sub-rule in favour of the education authorities for granting approval in cases, as the present one. Para 16 of the resolution dated 29-5-1973 speaks of the approval being obtained by the management before opening division of a standard in the school, thus employing additional staff. This is not the case here. We are, therefore, unable to find any power in respondents Nos. 1,2 and 5 in passing the impugned orders.

We may refer to the view which has been taken by a Division Bench of this Court (to which one of us, Ginwala, J. was a party in Shikshan Prasarak Mondal v. Deputy Director of Education Special Civil Application No. 131 of 1974 decided on 29-7-1980 in which the question was whether the Education Officer or the Deputy Director of Education had any power or authority to interfere with the termination of services of a teacher by the management after following the procedure prescribed in rule 77.1 of the Code. While considering this question and referring to various provisions of the Code, the Division Bench concluded that the said authorities do not have the power to interfere in the management of a school, except what has been laid down specifically in the Code.

In short, therefore, we find that respondent No 5 did not have the power or authority to sanction or approve the action proposed by respondent No. 3 in repatriating the petitioner to respondent No. 4. His order is, therefore, without any authority and has, therefore, to be quashed. Since the orders passed by respondents Nos. 1 and 2 are nothing but appellate orders, they would also fall to the ground once the order passed by respondent No. 5 is quashed. We may make it clear that we may not be understood to have dealt with the inter se dispute between the petitioner and respondents Nos. 3 and 4. As we have said above, we are concerned with judging the validity of the impugned orders passed by respondents Nos. 1, 2 and 5.

The result, therefore, is that the writ petition is allowed and the rule is made absolute in terms of prayer clause (a). In the circumstances, there shall be no order as to costs.