Regina Vs. St. Aloysius Higher
Elementary School & ANR  INSC 80 (16 March 1971)
CITATION: 1971 AIR 1920 1971 SCR 6 1972 SCC
Madras Elementary Education Act (8 of 1920),
s. 56(2) (h) and Part II, Rules--If statutory Rules or administrative
instructions--Purpose of Rules--Right of teacher against management of
Elementary School--If governed by contract or Rules.
The appellant, who was working as the
Headmistress in the respondent school was reduced to the position of an
Assistant Teacher. Her appeal to the District Educational Officer under.
13(2)(vi) of Part 11 of the rules published by the State Government in the
Gazette on August 29 1939, was rejected, but on a further appeal by her to the
Divisional Inspector of Schools, the management of the school was directed to
restore her to the position of Headmistress. As the management did not do so,
she filed a suit for the issue of a mandatory injunction to the respondent and
On the question whether the rules under which
the appeal was filed and the 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 the management,
HELD: (1) Section 56 of the Madras Elementary
Education Act, 1920, authorized the Government to make rules to 'carry out all
or any of the purposes of this Act', and under subs. 2(h) for declaring the
conditions subject to which schools may be admitted to recognition or aid, and
rules were framed in 1922. The Act was amended by Amendment Act of 1939, by
which Chs. 11, IV, VI and s. 55 were deleted.
The existing rules therefore could not be
continued as they could not be regarded as rules for 'carrying out the purposes
of the Act.' Hence they were reframed and published in the Gazette in 1939 in
two parts. [13F, H; 14D].
(a) The first part contained rules dealing
with matters provided for in the various sections. The rules in Part II could
not refer to any section because, they related to matters such as recognition
and aid dealt with in sections and Chapters which were repealed by the
1939-amendment, and hence, Part II rules did not set out or refer to any
section of the Act. [14E].
(b) The rules in Part I were headed 'Rules
framed under the Madras Elementary Education Act, 1920', but the Rules in Part
11 were not given any such heading or title. [14F].
(c) There was no previous publication of the
rules in Part 11 as required by s. 56(1). [14F-G].
(d) The rules in Part 11 could not be claimed
to have been made under s. 56(2) (h) dealing with the conditions subject to
which schools may be admitted to recognition or aid, because they did not
satisfy the condition precedent for such rule-making, namely, that they could
be made only 'to carry out all or any of the purposes of the Act', [16D-F].
7 Therefore, the rules in Part 11 could not
be said to be statutory rules framed under s. 56. [16F] (2) But the Government
had the power de hors the Act to lay down conditions under which it could
recognise and grant aid. To achieve uniformity and certainty in the exercise of
such executive power and to avoid discrimination, Government could frame rules
which would however only be administrative instructions to its officers.
[17B-D] The rules in the present case, relating to recognition and aid, thus
governed the terms on which Government would grant recognition and aid and
Government could enforce the rules on the management by the denial or
withdrawal of such recognition or aid, if there was a breach or noncompliance
of the conditions laid down in the rules. But the enforcement of such rules was
a matter between the Government and the management, and a third party, such as
a teacher aggrieved by same order of the management, could not derive from the
rules any enforceable right against the management on the grounds of a breach
of or non-compliance with any of the rules. [17D-E; 19B-C] (3) The relation between
the management of the 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 or statutory rules controlling or
abrogating such a contract and providing to the contrary. [16F-G] The result is
that the relations between the managements 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 ,is 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. [16H; 17A-B] Therefore,
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 Headmistress
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. [18B-C]
Chandrasekharan Nair v. Secretary to Government of Kerala, A.I.R. 1965 Ker.
303, A. Ramaswami Ayyangar v. State of Madras, (1962) 1 M.L.J. 269, and Moss.
v. The Management, (1970) 2 A.W.R. 157, approved.
Govindaswami v. Andhra, (1962) (1) An. W. R.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 500 of 1966.
Appeal by special leave from the judgment and
order dated July 27, 1965 of the Mysore High Court in Second Appeal No.235 of
B. R. L. Iyengar and E. C. Agrawala, for the
R. Gopalakrishnan, for the respondent.
8 The Judgment of the Court calling for a
report was delivered by Shah, J. The appellant was appointed on April 10, 1949,
Head Mistress of St. Aloysius Higher Elementary School, Urva then in State of
Madras. On June 1, 1955, the Manager of the School reduced her to the post of
an Assistant Teacher.
Her appeal to the District Educational
Officer, South Kanara, against the action of the Manager was rejected. In
second appeal, the Divisional Inspector of Schools, Coimbatore, by order dated
July 5, 1956, allowed the appeal and directed the District Educational Officer
to issue instructions to the Management of the School to reinstate the
appellant as Head Mistress. But no effect was given to that order by the
On June 26, 1957, the appellant filed the
suit out of which this appeal arises claiming a, mandatory injunction directing
the Management of the School to reinstate her to the post of Head Mistress and
damages for loss resulting from the wrongful action of the Management.
It was the appellant's case that the school
was receiving grant in aid from the Government of Madras and was subject to the
supervision and control of the Education Department of the Government of
Madras, and since the reorganization of the States, of the Mysore Government of
the affairs of the school, said the appellant, were conducted according to the
rules and regulations framed by the Government and embodied in the rules
relating to the elementary schools framed under the Madras Elementary Education
Act, 1920, and on that account the order passed by the Manager removing her
from the post of Head Mistress stood vacated, and refusal of the Manager to
reinstate her was illegal, because the Manager was bound by rr. 13 & 14
framed under the Madras Elementary Education Act to obey the order passed by
the Divisional Inspector of Schools on an appeal preferred by her.
The suit was resisted by the Management. They
contended that they were not bound by the Madras Elementary Education Act or
the rules framed there under; that the Manager alone was responsible for the
"efficiency, strength and progress" of the school and for the
internal discipline, which were all matters left to his discretion and the
Management could not be compelled to reinstate the appellant as Head Mistress
when she did not command their confidence.
The Trial Court held that the appellant was
not entitled to claim reinstatement as Head Mistress, because the action of the
Management removing the appellant's from the post of Head Mistress was not
illegal. The Trial Court also held that the orders 9 passed by the Educational
authorities were not binding on the Manager and the action taken by the Manager
"though severe", could not be declared illegal.
In appeal the District Court reserved the
Judgment passed by the Trial Court and decreed the appellant's suit and issued
a mandatory injunction directing the Management of the School to reinstate the
appellant as Head Mistress of the School. Against that decree a Second Appeal
was preferred to the High Court of Mysore. The High Court reversed the decree
passed by the District Court and ordered that the appellant's suit do stand
dismissed. Against that order this appeal is preferred with special leave.
The principal question which fell to be
determined before the High Court was whether the rules framed under the Madras
Elementary Education Act, 1920, which conferred authority upon the educational
authorities of the State, were statutory and enforceable at the instance of a
person prejudicially affected by breach thereof. The Madras Elementary
Education Act 8 of 1920 which originally contained 56 sections has been amended
from time to time by Madras Acts 2 of 1932, 2 of 1934, 11 of 1935, 13 of 1938,
2 of 1939, 15 of 1951, 28 of 1943, 8 of 1946 and 23 of 1950.
As a result of these amending Acts a large
number of the provisions of the Madras Elementary Education Act, 1920, have
been modified or repealed. Section 41 which provided for the recognition of
elementary schools and S. 42 which provided for admission of elementary schools
to grant-inaid, stood repealed by Act 2 of 1939. By s. 56 the State Government
was authorized to make rules not inconsistent with the Act to carry out all or
any of the purposes of the Act, and by sub-s. (2) of s. 56 it was provided :
"In particular and without prejudice to
the generality of the foregoing provisions they may make rules(f) laying down
the registers, statements, reports, returns, budgets and other information to
be maintained or furnished by local authorities, by panchayats, and by managers
of elementary schools under private management and the time within which any
statement, report, return, budget or other information shall be furnished;
(h) declaring the conditions subject to which
schools may be admitted to recognition or aid." 10 Rules were framed under
the Act for the first time by the Govt. of Madras in 1922. These rules provided
for the grant of recognition and aid to elementary schools, and for prescribing
conditions of service and qualifications of teachers and the authority of the
District Educational Inspector and higher authorities. The provisions relating
to the recognition of the elementary schools and admission of primary
elementary schools to grants in-aid were, as stated earlier, repealed by Act 2
of 1939, but the power to frame rules, especially for the purpose of declaring
the conditions subject to which schools may be admitted to recognition or aid,
It also appears that even after Act 2 of 1939
which repealed Ch. IV was enacted, rules relating to the power of the
Educational authorities were republished on August 29, 1949, and Part II of the
Rules dealt with matters relating to recognition of schools and grant-in-aid.
In the view of the High Court, after repeal of ss. 41 & 42 of the Act,
those rules could only have effect as executive instructions. On this question
it appears that there has been some difference of opinion in the High Courts. A
Full Bench of the Kerala High Court in Chandrasekharan Nair and others v.
Secretary to Govt. of Kerala and others,(1) approving their earlier judgment in
Joseph Valamangalam v. State of Kerala(1) held that the rules contained in Part
II headed "Rules for grant of recognition and aid to Elementary Schools"
framed under the Madras Elementary Education Act, 1920, were mere executive
directions having no statutory authority.
The High Court of Andhra Pradesh in Jalli
Venkatswamy V. The Correspondent, Kasturiba Gandhi Basic Senior School
kenetipuram(3) was apparently of the view that these rules had statutory
The High Court of Madras in A. Ramaswami
Ayyangar v. State of Madras (Education Department)(1) held that the rules were
administrative and not statutory in their effect, and the management could dispense
with the services of its employee (a teacher) after giving three months' notice
in the usual course, without assigning any special reason, and the employee
could not invoke the aid of the Court for an order to quash the proceedings of
the management dispensing with his services on the ground of non-compliance
with those rules.
(1) A. I. R. 1961 Kerala 303.
(3) A. I. R. 1961 A. P. 178.
(2) A. I. R. 1958 Kerala 290.
(4) A. I. R. 1962 Mad. 387.
11 In this case, the question whether an.
order made by the Educational authorities in exercise of the powers conferred
upon them by rules is liable to be enforced by action in a civil court at the
instance of s person affected by the action of the school authorities falls to
be determined. It is unfortunate that counsel have not been able to place
before us the Act, and the rules in force at the material time. Counsel
appearing at the Bar are also unable to inform us about the authority in the
exercise of which the rules were originally framed and were reissued after the
repeal of Ch. IV of the Act. Before we can decide this appeal, we must have
before us a copy of the relevant rules in force at the material time, and
evidence about the authority under which the rules were framed and continued,
the sanction behind the enforcement of the rules, if any, and the manner in
which the rules were being administered by the Madras Government and thereafter
by the State of Mysore when the District of South Kanara merged with that State
under the States Reorganization Act, 1956.
We direct that the papers be sent down to the
Trial Court and that the Trial Court do report to us after taking evidence on
the questions set out earlier. The Trial Court may, if so advised, issue a
summons to the Educational authorities of the State of Madras or take other
steps to ensure production of the documents bearing on the questions on which
report is directed to be made. Enquiry may especially directed to the question
whether the State of Madras, or the state of Mysore, have on any earlier occasion
enforced the orders passed by the Educational authorities in appeals and the
power in exercise of which they have been enforced. The Trial Court to submit
the report within six months from the date on which the papers reach that
The judgment of the Court after receipt of
the report was delivered by Shelat, J.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
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.
12 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 therefore 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 any 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.
The Trial Court accepted the school's
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
relations-hip 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 Specific Relief
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.
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 13 documentary, and dispatched 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 Rev.
Fr. Joseph v. Kerala(1) it is possible to,
trace the charges 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.
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 s. 56
and particularly under cl. (h) of its sub-s. (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.
Before we proceed to. consider these
contentions it is necessary to examine briefly the Act and its legislative
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 Chapter II,
IV, VI and s. 55 in Ch. VII. were deleted.
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 the Government through its Education Department.
Sec. 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. sec. 56 authorized the Government to make rules not
inconsistent with the provisions of the Act "to carry out all or any of
the purposes (1) A. I. R. 1958 Kerala 290.
14 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 ss. 41 to 43 in it, dealt
with recognition of schools and admission of private managed schools to
grant-in-aid. These chapters, as stated earlier, were repealed in 1939.
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. 11 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. 11 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 Act 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, 1930. The new Rules were divided into two parts. The first part
contained rules dealing with matters provided for in ss. 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 11 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.
Ch. 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 teacher's service register by the manager
of the school specifying therein the terms of service under which a teacher is
recruited. The register would include 15 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 initially to
be made on probation and on expire of the probation period the teacher would be
deemed to be permanent. Cl. (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 subcl. (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
wailful neglect of duty, serious misconduct, gross insubordination,
incompetence etc. The first provision 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 teacher's 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 r. 13(2) provides for appeals, first, before the District Educational
Officer, and then, before the Divisional Inspector of Schools. Under r. 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 r.. 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. 11 of Part II Rules
contain rules in regard to aid, such as teaching grants, maintenance grant
etc., 16 and Ch. III contains rules with regard, to grants for school
buildings, building sites and play-grounds.
Chs. II and IV of the Act, which contained
provisions for recognition and aid, having been repealed, these rules, reissued
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. 11 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 11 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 11 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.
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 17 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
But it cannot also be gainsaid that as the
Government 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 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 those 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 some order of the management,
cannot derive from the rules any enforceable right against the management oh
the ground of a breach or noncompliance 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 month's notice, or one month's salary in lieu thereof
in 'accordance with the contract of employment between the feather 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 month's notice. Though in
the absence of '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 riot 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 18 rules
which, inter alia, enjoin upon a school to abide by the directions given there
under by the education officers of the Government named therein.
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. 19
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.
In Rev. Fr. Joseph v. Kerala,(1) 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 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 grant-in-aid. This decision was later approved by a
full-bench of that High Court in Chandrasekharan Nair v. Secretary to
Government of Kerala(2) where that Court once again held that Part II Rules
were administrative rules. Similarly, in A. Ramaswami Ayyangar V. Madras,(3)
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. Andhra,(1) a
learned Single Judge of the Andhra High Court, took the view that the powers
and functions of the State's educational officers under these rules in relation
to recognition a ad aid were quasi judicial and held that these rules were
Statutory (1) A. 1. R. 1958 Kerala 290.
(3) 1962(1) M. L. J. 269.
(2) A. I. R. 1961 Kerala 303.
(4) 1962(1) An. W. R. 263.
19 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 reissuance
of the rules thereafter and the distinction made by the Madras Government
itself between Part I and Part 11 Rules in the headings which it gave to those
two parts. The more recent view of the Andhra High Court, however, is reflected
in Moss v. The Management(1) where a Division Bench of that High Court has held
that Part 11 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.
On the reasons aforesaid, the suit filed by
the appellant must be held to be misconceived, and consequently, the High Court
righty dismissed her suit. The appeal fails and is dismissed. But in the circumstances
of the case, we decline to make any order as to costs.
V. P. S. Appeal dismissed.
(1) 1970(II) An. W. R. 157.