Manju Devi vs Director of Public Instruction

A.K. Sinha, J.—This Rule was obtained by the Petitioner for quashing the order of the Director of Public Instruction, State of West Bengal, as the Petitioner''s appointment as permanent teacher of a school was not approved and for incidental reliefs.

Briefly stated, the Petitioner''s case is that she was appointed as an assistant teacher of a school known as ''Belgharia Jatin Das Vidyamandir for Girls'' on probation on April 14, 1969, for one year against a permanent vacancy on a monthly salary of Rs. 220 in the Higher Secondary section of Humanities department. At the material time, she was a graduate securing Honours in English and also an M.A. in the same subject of the Calcutta University. She completed her period of probation on the expiry of the year 1970. And thereafter while continuing as a permanent teacher in the school, she received on or about November 27, 1972, from the Secretary of the school a letter in which she was told that the Director of Public Instruction disapproved her appointment since communicated to the school under a memo, of August 9, 1972 and accordingly, her service would stand terminated with effect from January 1, 1973. She asked for a copy of the memo, in writing thereafter, but that was not supplied to her.

The Petitioner''s further case is, as the Managing Committee of the school became defunct after expiry of April 30, 1970, under the new set of Rules for the Management of Non-Government Institution (Aided and Unaided), 1969, such a letter terminating her service was entirely unathorised and invalid. Still, further case of the Petitioner is that after the completion of her probationary period and having continued in her service for a period of 3 years and 8 months, the Director of Public Instruction had no power to disapprove her appointment as she became automatically permanent in her post. At any rate, she was not given any opportunity before such an order was made and the order is otherwise invalid as not made in accordance with the Rules. It is said that, in spite of her representation, or demand for withdrawal of the impugned order and notice, justice was denied to her. That is how, in short, she felt aggrieved and obtained the present Rule.

This Rule is opposed by the Director of Public Instruction, the Respondent No. 1, the District Inspector of Schools, the Respondent No. 3 and Secretary of the school, the Respondent No. 5 and some other members of the Managing Committee of the school. The Secretary of the school has used affidavit-in-opposition, but no such affidavit has been used by the Respondents Nos. 1 and 3. In the affidavit of February 6, 1973, of the school, apart from the general denial of allegations made by the Petitioner, farther facts relevant for the present purpose, as stated, substantially are that the reconstitution of the Managing Committee remained deferred for three months with effect from January 6, 1973, or till the amendment to the Rules for management of recognised non-Government institution are finally published. It is said that the existing Managing Committee of the school will continue to function during this period provided it is not superseded by the Board in the meantime. The application for approval, it is further stated, had been duly forwarded to the authority constituted under the Rules and further actions were taken by that authority concerned in accordance with law.

Although a number of grounds were taken in the substantive writ petition, it seems clear from allegations and counter-allegations that the main question that arises for consideration in the present case is whether the impugned order passed by the Director of Public Instruction is valid. Mr. Sanyal, however, on behalf of the Secretary of the school, has raised a preliminary point, i.e. whether a writ would lie against a Managing Committee of the school. At the same time it is fairly conceded by Mr. Sanyal that if the purported order passed by the Director of Public Instruction cannot stand, he will not press this point, very reasonably, for the notice of termination was given on behalf of the school to the Petitioner only because the Director refused to approve the Petitioner''s appointment according to the Rules.

We would, therefore, proceed to examine the main question whether the order passed by the Director was valid. For this purpose, both the earlier and the present Rules for the management of of a school of the present type have got to be looked into as there is a dispute as to which of the Rules would be applicable in the present case.

Now, the first set of Rules for management of non-Government High Schools including aided schools framed by the State Government in exercise of the power conferred by Section 62 read with Section 61 of the West Bengal Secondary Education Act, 1950, came into force by notification dated. September 19, 1960, Second paragraph of Rule 25 of these Rules, relevant for our present purpose, provides :

In the case of aided schools, the power of the Committee of appointing and removing teachers granting promotion and increment shall be exercised Subject to the approval of the Board of Secondary Education who will consider the recommendation of the Director of Public Instruction, West Bengal, before granting approval in the matter. The power under this clause to grant leave and award free studentship shall also be exercised in accordance with the Rules framed by the Board of Secondary Education in this behalf.

It is quite clear from the above Rules that the power of the Committee of appointing, removing teachers etc. shall be exercised subject to the approval of the Board of Secondary Education and not the Director of Public Instruction, West Bengal. But, at the same time, before granting such approval the Board will consider the recommendation of the Director of Public Instruction. Under this Rule, therefore, the only part assigned to the Director is to give its decision either in favour of or against the approval. But, the Board is the final authority for such approval. In this case, Mr. Sanyal on behalf of the Managing Committee has produced a copy of the letter addressed to the Board for according approval. But it appears that one M. Saha for the Director of Public Instruction wrote on August 9, 1972, a letter (annex. Z to the supplementary affidavit of the Petitioner dated March 29, 1973) to the Secretary of the school. In substance it is stated that as the Petitioner did not possess requisite qualification for the post of a teacher of ''Elective subject for Hum. Stream'', her case for "approval of appointment as a teacher, H.S. Section, cannot be entertained". It is undisputed that the Managing Committee solely relying on this letter issued the impugned notice terminating the service of the Petitioner Clearly, therefore, there was no approval of the Board under Rule 25 and the termination of the Petitioner''s service was invalid.

Mr. Roy on behalf of the Director wants us to apply the new set of Rules, for, he says these are Rules affecting procedure and not substantive right and therefore, they have retrospective operation, even though the Petitioner was appointed at a time when these Rules were not in force. He has cited a passage from Maxwell''s Interpretation of Statutes (12th ed., p. 222) and also an English decision of the House of Lords in Attroney-General v. Vernazza (1960) A.C. 965 and a decision of the Allahabad High Court in Indraj Singh and Others Vs. Smt. Savitri Kunwar, . This proposition does not require any closer examination for it is well-established that a charge or alteration either of the Statute or A of statutory provisions or Rules, if only procedural, would operate retrospectively. Granting that the Rules regarding mode of appointment of teachers are merely procedural, the first question that crops up in this connection is whether there has been compliance with these Rules in refusing approval. Rule 28(1)(i) of the new Rules of Management framed by the State of West Bengal in exercise of the powers conferred by the West Bengal Board of Secondary Education Act, 1963, as amended by two other Ordinances of 1969 published by notification of July 15, 1969, reads:

In an aided institution the Committee shall, subject to the approval of the Director, have the power

(i) to appoint teachers and other employees on permanent basis against permanent vacancies, if available, within the sanctioned strength of teachers and other employees, approval for such appointment being thereafter sought for from the Director ordinarily within a fortnight from the date of decision of the Committee.

On a fair reading of this provision, it seems quite clear that the Managing Committee could not have possibly sought for the approval of the Director applying this Rule within a fortnight from the date of its decision. Even assuming that it could do so thereafter, it is nobody''s case that the Managing Committee sought for such approval for appointment of the Petitioner from the Director at any stage after these Rules came into force. It, however, appears from the copy of letter of M. Saha (annex. Z) that there is reference of memo, of appointment dated November 24, 1971. But, it is clear from the letter of the Managing Committee that the Board might have forwarded the letter along with the memo, of appointment to the Director and upon such letter without sending any recommendation as required under the previous Rules to the Board, the decision appears to have been taken directly in the office of the Director of Public Instruction and the Petitioner''s case for approval of appointment in the language of the letter issued could not be entertained. So, the procedure adopted in taking such a decision about the Petitioner''s case is wholly unwarranted by the provisions of the relevant Rule. In the next place, from the impugned order which was actually passed (we have directed a true copy to be kept with the record), it appears, the order was passed not by the Director himself but by another person below the rank of the Director of Public Instruction. This order, however, appears to have been endorsed by the Director. We think that this was not in sufficient compliance with the Rule. Clearly, a duty is cast upon the Director of Public Instruction, under the Statutory Rules, to approve the appointment of teachers concerned, himself. This duty which is coupled with the discretion, in absence of the specific provision in the Rule itself, could not be delegated nor it could be performed by other person or authority in almost similar circumstances, as far back as 1952, while construing certain provisions of the City of Bombay Police Act, 1902 and the Rule made thereunder by which the Commissioner of Police was only given power to grant licence for Cinema, the Supreme Court in Commissioner of Police, Bombay Vs. Gordhandas Bhanji, , inter alia, held that

under the Rules framed u/s 22 of Bombay Police Act, the only person vested with authority to grant or refuse a licence for erection of a building to be used for purposes of public amusement was the Commissioner of Police. It was also clear that under Rule 250, he is vested with the absolute discretion at any time to cancel or suspend any licence which had been granted under the Rules. But the power to do so was vested in him and not in the State Government and could only be exercised by him at his discretion....and thus the order of cancellation was not an order by the Commissioner but merely intimation by him of an order passed by another authority, namely, the Government of Bombay.

This is exactly what has happened here. The order disapproving the appointment of the Petitioner as a teacher was passed by another and not by the Director, even though the order seems to have been endorsed by putting ''yes'' by the Director and therefore, there was no valid order of disapproval passed by the Director of Public Instruction.

Mr. Roy has contended that the Petitioner''s appointment could not be approved, for, according to the scheme framed by the Director of Public Instruction, the Petitioner not having requisite qualification for being appointed as a permanent teacher in Humanities section without a special qualification as provided in the scheme contained in the said circular before us, the Petitioner''s appointment could not be approved as a matter of course. This was properly considered, though by the person below the authority was finally approved by the Director of Public Instruction. We cannot accept this contention as correct. For, even if any scheme is to be followed in granting or refusing approval in appointment of teacher, that fact by itself cannot absolve the authority concerned from its duty to apply its own mind and to use its discretion or discharge that authority from its obligation by merely endorsing the view taken by another person or authority, for, as observed by the Supreme Court in the same case

the public authorities cannot play fast and loose with the powers vested in them and the persons to whose detriment orders are made entitled to know with exactness and precision what they are to do or forbear from doing and exactly what authority is making the order Rule

In this case, it is clear, therefore, that the Director of Public Instruction failed to carry out its duty under the Statutory Rules by merely endorsing the disapproval of the appointment of the Petitioner as a teacher.

This apart, we are not satisfied that the order purported to be passed by the Director of Public Instruction was at all bona fide. Even if we brush aside the arguments on behalf of the Petitioner that she was entitled to get an opportunity of hearing in compliance with the rules and principles of natural justice, for the decision of the Director may not involve a quasi-judicial approach but, nevertheless, in case of administrative order the authority concerned must, have to act honestly and not in an arbitrary and capricious manner for he is supposed to take a decision affecting the rights of a party, even though on a subjective basis : See The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, . Even the principle of ad altarem partem with the passage of time has been held to be a more elastic principle so as to be made applicable in proper cases even to an administrative decision or order. It is, however, not necessary to decide in this case, whether the Petitioner was entitled to get the benefit of that principle before an order could be made by the authority disapproving her appointment as a teacher in the school. For, it appears that the Petitioner who was appointed in 1969 and spent quite a long time in rendering her service to the institution, was recommended for retention in service by some subordinate authorities in the office of the Director. Her substantive appointment was made, as appears from the advertisement produced before US, as a teacher in English and not as a teacher in specified subject as required in Humanities stream. Then again, the audited report relating to the total number of appointment of teachers in the school produced before us shows that the appointment of teachers subsequently made in general section was approved whereas earlier appointment of the Petitioner was turned down. We are, therefore, satisfied that even the authorities who actually passed the order did not apply its mind at all but passed the order in a casual manner and disapproved her appointment on misapplication of the circular in her case. In our opinion, considering all this we must hold that no valid order was passed by the Director of Public Instruction.

There is yet another aspect of the matter (to be considered in this case. It is contended on behalf of the Petitioner that under Sub-rule (7) of Rule 28 of the New Rules a teacher appointed shall be confirmed on completion of two years'' satisfactory service in the institution. Sub-rule (7) provides:

In all cases of appointment, both permanent and temporary, the Committee shall issue letters of appointment. In the case of a permanent appointment, a teacher or an employee appointed on probation shall be confirmed on the expiry of the period of probation unless an order to the contrary is issued it least six weeks before the date on which confirmation normally falls due. In the case of an appointment on temporary basis against a permanent post the teacher or the employee so appointed shall be confirmed on completion of two years'' continuous satisfactory service in the institution.

Relying on the above Rule, it is said that the Petitioner stood confirmed in her appointment on expiry of the period of probation, for, no order to the contrary was issued within the period or at any time before the date of confirmation fell due. In any event, even in temporary appointment against a permanent post the Petitioner so appointed stood confirmed on completion of two years'' continuous satisfactory service in the institution. It appears that the Petitioner has completed three years and eight months'' service from the date of her appointment, i.e. April 15, 1969, with one year''s probation against a permanent post of an additional teacher in the Higher Secondary section of the Humanities department. Although this appointment was subject to the approval of the Director of Public Instruction, no order admittedly was given within the period of probation, nor she was asked to continue on probation for any other extended period. This being the admitted position, we do not find any reason why her appointment should not stand confirmed on the expiry of the period of probation. Or even it be a case of temporary appointment after two years from the date of such appointment elapsed. While we say this, we are not unmindful of the contents of Clause (i) of Sub-rule (1) wherein the power of appointment of the teacher is conditioned by approval of the Director of Public Instruction without being fettered by any time limit. This provision read along with Sub-rule (7) apparently offers an inconsistency and if logically pursued, lead to an absurd result for while a permanent or temporary appointment of a teacher shall be confirmed'' after expiry of the specified period, it may still be open to the Director of Public Instruction to disapprove such appointment at any subsequent period or after any length of time. So, clearly Clause (i) of Sub-rule (1), if so interpreted, is bound to override the provision of Rule 7, but then that would render the whole of the later provision totally ineffective and unworkable. It is therefore necessary that these Rules, if possible, should be interpreted in a way so that they may exist side by side and be effectively applied not in derogation but in furtherance of the object sought to be achieved. For, it is well-established that a statute must be read as a whole and one provision of the Act should be construed with the Rules and other provisions in the same Act so as to make the enactment of the whole statute workable, the sole purpose being to avoid, if possible, absurdities, friction and inconsistency between sections or same section and other parts of the statute. See Raj Krushna Bose Vs. Binod Kanungo and Others, and N.T. Veluswami Thevar Vs. G. Raja Nainar and Others, Viewed in that light, the only other possible construction by which these two provisions, can together play in tune and harmony would be that in case of appointment of teachers, both permanent and temporary, as provided in Sub-rule (7), approval or disapproval of the Director of such appointment must be given within the time limit fixed for confirmation of such appointment. We think this alternative construction, if adopted, would avoid uncertainty and friction in the system which these statutory rules purport to regulate. As observed by Lord Shaw in Shannon Realties v. St. Michael (1924) A.C. 185 (P.C.):

Where words of statute are clear, they must, of course, be followed, but in their Lordships'' opinion, where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating and that alternative is to be rejected which will produce uncertainty, friction or confusion into the working of the system.

The same rule of interpretation has been adopted by the Supreme Court in a series of decisions. Instead of referring to them in extenso we would only quote the observation of Venkatarama Iyer J. in Veluswami v. Raja Nainar Supra where his Lordship while considering certain provisions of the Representation of the Peoples Act, 1951 and the procedural rules made therein expressed himself as follows:

It is no doubt true that if on its true construction a statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the Legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other not, it is our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies.

We are, therefore, inclined to adopt the later construction as the only fair and proper construction of Sub-section (1)(i) read with Sub-rule (7) of Rule 28 to avoid uncertainty and friction and to make it possible for smooth working of the system envisaged under the Rule. In our opinion, therefore, in case of appointment of teachers, either permanent or temporary, the approval or disapproval, as the case may be, of the Director of Public Instruction must be given within the time limit specified in Sub-rule (7) of Rule 28 for confirmation of such appointments. No subsequent disapproval of appointment after the confirmation of a teacher concerned can disentitle him to get the benefit of the Rule. To construe this Rule otherwise would be to render the entire sub-rule nugatory, for even after the confirmation of service of the teacher or employee, if it remains still open to the Director to either approve or disapprove her appointment, the provision of Sub-rule (7) would be wholly unworkable. There would be no security of the tenure of service at any time and that will indeed defeat the very purpose for which Sub-rule (7) was framed. In the instant case, there being no such extension and no order being issued within time by the Director of Public Instruction clearly, this part of the Rule will be attracted and the Petitioner would stand confirmed on the expiry of the period of probation. No subsequent disapproval of her appointment after the confirmation can disentitle the Petitioner from enjoying the benefit of this Rule. The same principle, in our opinion, will apply in case of appointment on a temporary basis against a permanent post. If the approval is not given within two years of continuous satisfactory service in the institution, the teacher or employee concerned shall stand confirmed on completion of two years'' service even if no order is given from the Director. So, applying either of these cases to the Petitioner, it is clear that her appointment already stood confirmed long before the order of disapproval of her appointment was made. In this view of the matter also the impugned order must be struck down as invalid.

The same result is achieved even if the earlier provision is ignored and the later provision of Sub-rule (7) is adopted. It is another well-settled principle of interpretation of statutes that in case of conflict between the two provisions of the statute or the statutory rules, the last must prevail though that position should be accepted only in the last resort. We do not think we should refer to long line of cases, but if one is needed we can refer to one decision of the Judicial Committee in King v. Dominion Engineering Company Ltd. AIR 1947 P.C. 94 where Lord Macmillan observed:

If proviso 2 is repugnant in any way to proviso 1, it must prevail for it stands last in the enactment and so to quote Lord Tenterden C.J. speaks the last intention of the makers. The last word is with the Respondent, Dominion Company and must, prevail.

This being the position, we need not go into the other question raised by Mr. Sanyal, for as already noticed, he will not press the preliminary point as to maintainability of the writ petition against the Managing Committee. Therefore, as there was no valid order, the notice terminating the Petitioner''s service is equally invalid and of no effect.

Mr. Roy, however, has lastly contended that in view of the circular the State Government will not be responsible, in any way, for payment of salaries and allowances to the Petitioner. We are afraid, we cannot go into this question for this is a matter which is outside the scope of the application, more so, when no affidavit-in-opposition has been used in this case on behalf of the Director of Public Instruction. We, however, find from the advertisement before us that applications were invited for the post of a teacher who must be a graduate with Honours in English or an M.A. in English and not with any special qualification required in accordance with the circular produced before us for being appointed a teacher in ''Humanities stream''. But we do not express any opinion on these matters.

In the result, this Rule is made absolute. Impugned order of disapproval and the notice of termination of the Petitioner''s service on the basis thereof are quashed and we direct the Respondents to forbear from giving effect to the said order and notice of termination of service of the Petitioner There will be no order as to costs.

Let a writ both in the nature of certiorari and mandamus issued accordingly.

We direct that copies of the said circular, audited report containing the total number of appointment of teachers of the school and letter issued to the Board of Secondary Education and copy of the actual order of disapproval, which was produced before us, be kept with the records.

Sengupta, J.

I agree.