State of Assam & ANR Vs. Ajit
Kumar Sharma & Ors [1964] INSC 238 (27 October 1964)
27/10/1964 WANCHOO, K.N.
WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1965 AIR 1196 1965 SCR (1) 890
CITATOR INFO:
R 1972 SC1126 (6) RF 1973 SC 588 (27) R 1977
SC2145 (4)
ACT:
Constitution of India, 1950, Art.
226-Administrative instructions by State to private college-Carried out by
Governing Body-Conditions of service of teachers affected- Right of teacher to
maintain writ petition.
HEADNOTE:
The respondent was a teacher in a private
college affiliated to the Gauhati University in Assam. The college was
receiving grants-in-aid from the State on certain conditions set out in the
form of Rules. One of the rules, r. 7, provided that if a teacher stood for
election to the Legislature, he should be on compulsory leave without pay from
the date of filing of nomination till the end of the next academic session or,
till the termination of the term of the office to which he may be elected. The
respondent applied for leave for three months and contested for a. seat in
Parliament but was defeated. So, he applied for permission to rejoin, and the
Governing Body granted him the permission. The Director of Public Instruction, however,
pointed out that such permission was in contravention of the aforesaid rule,
and therefore, the Governing Body informed the respondent that he had been
granted compulsory leave without pay till the end of the academic session. The
respondent thereupon filed a petition in the High Court for the issue of a writ
of mandamus or other appropriate direction on the grounds that : (i) the rule
had no legal force, (ii) the rule did not bind the Governing Body or the
respondent and (iii) the order of the Governing Body putting him on compulsory
leave was ineffective. He also prayed that the State should be directed not to
withhold the grant- inlaid to the college if the Governing Body did not impose
compulsory leave on him. The Governing Body was also made a party to the
petition. The High Court held that the rules had no statutory force, and issued
a direction to the Director, as a public authority, to refrain from giving
effect to. such rules. The High Court also issued a similar direction to the
Governing Body, on the ground that it had not applied its independent mind to
the question of respondent's leave. The State appealed to the Supreme Court,
but did not dispute that the Rules were only administrative instructions.
HELD: The order of the High Court issuing a
writ to the State through its Director should be set aside. [899 B] The rules
being mere administrative instructions have not the force of law as statutory
rules. They therefore confer no right on the teachers of private colleges which
would entitle them to maintain a writ petition under Art. 226, for the
enforcement or non-enforcement of any provision of the rules. They being mere
administrative instructions, are matters between private colleges and the
Government in the matter of grants-in-aid to such colleges, and no teacher of
any college has any right under the rules to ask either for their enforcement
or non-enforcement. It is open to the Governing Body not to carry out any such
instructions and it will then be open to the State to consider what grant to
make. But if the Governing Body chooses to carry out the instructions it could
not be said that the instruction was carried out under any threat; and, it is
not oven to a teacher 891 to insist that the Governing Body should not carry
out the instruction. [897 B-H] Messrs Raman and Raman v. The State of Madras,
[1959] Supp.2. S.C.R. 227, referred to,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1062 of 1963.
Appeal by special leave from the judgment and
order dated September 25, 1962, of the Assam High Court in Civil Rule No. 221
of 1962.
G. S. Pathak and Naunit Lal, for the
appellants.
M. K. Ramamurthy, for respondent No. 1.
The Judgment of the Court was delivered by
Wanchoo J. This is an appeal by special leave against the judgment of the Assam
High Court. Shri Ajit Kumar Sharma (hereinafter referred to as the respondent)
is a teacher in the Handique Girls College (hereinafter referred to as the
College) at Gauhati. He filed a writ petition in the High Court on the
following averments. This is a private college teaching up to B.A. standard and
affiliated to the Gauhati University established under the Gauhati University
Act, No. 16 of 1947, (hereinafter referred to as the Act). The College is
managed by a Governing Body according to the provisions of the Statute for the
management of private colleges framed by the Gauhati University under s. 21 (g)
of the Act. Under s. 23 (h) of the Act, the Executive Council may frame
Ordinances to provide for the emoluments and conditions of service of teachers
of the University, including teachers in private colleges. The University has
in 'Pursuance of the powers so conferred on it framed rules for the grant of
leave to teachers of private colleges which are binding on the Governing Bodies
of such colleges, and had actually been adopted by the Governing Body of the
College in July 1956 for its teachers. Under these rules the Governing Body of
the College cannot compel a teacher to take leave without pay.
The College receives grant-in-aid from the
State of Assam and there are certain conditions for giving grant-in-aid.
These conditions do not provide for
withdrawal of the grant- in-aid if a private college fails to put a teacher,
who seeks election to a legislative or local body, on compulsory leave without
pay from the date of the filing of nomination till the end of the next academic
Session or till expiry of the term of the office to which the teacher is
elected.
892 The respondent as already stated is a
teacher in the College. He applied for leave with pay from January 2, 1962 to
March 5, 1962 in order to contest a seat for Parliament.
This leave was granted to him by the
Governing Body of the College by resolution No. 1 of March 9, 1962. The
respondent stood for election and was defeated. He thereupon applied that he be
permitted to rejoin his duties from March 6, 1962 and the Governing Body
permitted him to do so by its resolution No. 2 dated Match 9, 1962. He
therefore worked as such from March 6, 1962. On March 20, 1962, the Director of
Public Instruction, Assam (hereinafter referred to as the Director) wrote a
letter to the Principal and Secretary of the College with reference to the
letter of March 10, 1962 from the College in which apparently the Director had
been informed of the leave granted to the respondent and certain other teachers
in connection with elections to Parliament and Assam Legislative Assembly. In
this letter, the Director informed the College that he was unable to approve
the resolution of the Governing Body permitting respondent and certain other
teachers to rejoin their duties "immediately". The letter pointed out
that such permission was in contravention of r. 7 of the Rules regarding the
Conduct and Discipline of the Employees of Aided Educational Institutions
(hereinafter referred to as the Rules) and could not therefore be approved. The
Director also added that the Rules had been framed in 1960 after due
consultation with the University and the Assam College Teachers" Association.
On receipt of this letter, the Governing Body seems to have reconsidered the
matter of leave to the respondent, and passed a resolution on April 4, 1962.
This letter along with another letter was considered by the Governing Body of
the College, and it was resolved in view of these letters that the resolution
of March 9, 1962, permitting the respondent to rejoin duties from March 6, 1962
could not be given effect to. It was further resolved that the respondent and
some other teachers be granted leave in accordance with the Rules. This
resolution of the Governing Body was conveyed to the respondent by the
Principal of the College by letter dated April 5, 1962 and he was told that he
had been granted compulsory leave without pay till the end of the academic
session in view of his standing for election in the last general elections.
The respondent thereupon filed the writ
petition in the High Court out of which the present appeal has arisen. His
contention was that the Rules to which the Director had made reference had no
statutory force and that he was entitled to leave under the Rules framed by the
Gauhati University, which had been accepted by the 893 College. He also
contended that the Rules not having the force of law did not affect the powers
of the Governing Body of the College in the matter of its functions.
Consequently the second resolution of the Governing Body dated March 9, 1962
was proper and correct and the respondent was properly allowed to rejoin duty
after the expiry of his leave on March 6, 1962. The Director had no authority
to interfere with the second resolution of the Governing Body dated March 9,
1962 and that resolutions of this character passed by a Governing Body did not
require the approval of the Director and would have effect by themselves. It
was further contended that as the leave rules which. govern the College did not
give power to the Governing Body to put a teacher on compulsory leave without
pay against his will and consent, the resolution of the Governing Body dated
April 4, 1962 by which the respondent was put on compulsory leave without pay
was of no effect and in any case the Governing Body should not have acted on
the illegal direction of the Director.
Finally it was urged that the Governing Body
acted as it did on a threat contained in the letter from the Additional Director
dated March 19, 1962, in which it was said that the education department would
not provide funds for salaries and allowances for any employee who had gone on
leave in connection with elections in contravention of r. 7 of the Rules, and
therefore the action of the Governing Body was bad and in any case the Director
had no right to threaten the Governing Body in this way. The respondent
therefore prayed for a writ in the nature of certiorari / prohibition /
mandamus declaring r. 7 of the Rules as having no legal force and also as
having no binding character on the Governing Body or the respondent. He further
prayed that the resolution of the Governing Body dated April 4, 1962 be
declared ultra vires, void and in- effective in law, and the Director should be
directed not to withhold the grant-in-aid to be given to the College on the
failure of the Governing Body to put the respondent on compulsory leave without
pay.
Before we consider the reply of the State, we
would like to give the genesis of the Rules. It appears that in February 1959
the State of Assam decided to grant additional grant-in-aid to private colleges
to implement the recommendations of the University Grants Commission regarding
scales of pay and other, emoluments to the teacher of such colleges. Apparently
these scales of pay and other emoluments were advantageous to the teachers and
meant an improvement on their pay and other emoluments which they were getting
from before. It was further decided that such, 894 grant-in-aid should be given
to private colleges on condition that the college authorities agreed to abide
by certain rules regulating the conditions of service of their employees.
Accordingly it was decided to frame rules in consultation with the University
and the Assam College Teachers' Association. Further the views of the Governing
Bodies of all private colleges were also invited on the draft rules. Among
them, the Governing Body of the College was also consulted and it resolved on
August 6, 1960 that it agreed with the proposed rules contemplated by the
Government to be framed as communicated to it. The Government also ascertained
the views of the Gauhati University and the Assam College Teachers' Association
and eventually the Rules were notified by notification dated March 9, 1961,
published on March 29, 1961. Rule 7 of the Rules, which is material for our
purposes is in these terms:- "An employee desiring to seek election to the
Legislative Body or to hold office with any political Organisation or local
bodies shall be on compulsory leave without pay from the date of the filing of
his nomination till the end of the next academic session or till the
termination of the term of office to which he may be elected as the case may
be. Such employee however shall not be allowed to retain lien on his post for a
period exceeding five years." The Rules therefore were framed in
consultation with University and the Assam College Teachers' Association, which
presumably represents the teachers of all private colleges. The Governing Body
of the College was also consulted and it accepted the Rules to be promulgated.
In this Governing Body the members of the teaching staff of the College are
well represented and it was after the concurrence of the University, the
College Teachers' Association and the Governing Body of the College in
particular in which the teachers of the College were well represented that the
Rules were notified.
The case of the appellants was that
considering the manner in which the Rules were framed they were binding on the
College as well as on the teachers of the College and it was thereafter that
the Government gave the revised grants to the College. It seems further that
the case of the appellants was that the Rules had statutory force in view of
the amendment of the Act by Assam Act 11 of 1961 by which a proviso was added
to S. 21 (g) of the Act whereby the Government was given power to make the 895
necessary rules in consultation with the University in respect of government
colleges and government aided colleges. There were certain other objections by
the appellants, to which it is unnecessary to refer.
The Governing Body of the College was also
made a party to, the writ petition and submitted a written-statement. It
supported the stand taken by the State, and in particular pointed out that the
Governing Body in which the teaching staff of the College was ten represented
had accepted the Rules before they were notified. In consequence the Government
had been giving grant-in-aid to the College in accordance with the recommendations
of the University Grants Commission by which the pay scales etc., of the
teachers had been improved and the teachers had been receiving the pay and
dearness allowance under this grant-in-aid. No representation was ever made by
any member of the teaching staff when the Rules were under consideration and
were notified that he would not be bound by the Rules. The teachers including
the respondent having accepted the pay and dearness allowance under the scheme
of the grant-in-aid given by the State on terms and conditions laid down in the
Rules, the respondent was estopped from challenging the Rules which were in the
interest of the College and education in general. The Governing Body in
particular was bound by the Rules having accepted them and the resolution of
April 4, 1962, was not passed on. account of any threat by the Director.
The main question that was argued before the
High Court was whether the Rules in question had statutory force.
Alternatively, it was argued that even if the
Rules had no statutory force and were mere executive instructions for the
purpose of grant-in-aid, the High Court should not issue a writ against the
State or the Director interfering with such administrative instructions issued
by the Director. It was further urged that if the Rules were mere executive
instructions which had been accepted by the Governing Body of the College in
which the teachers of the College were well represented, they would be in the
nature of contractual obligations which could not be enforced by the issue of a
writ under Art. 226.
The High Court first considered the question
whether the Rules had statutory force and came to the conclusion that they
could not be said to be issued under the proviso to s.
21(g) of the Act on which reliance was placed
and therefore did not have any statutory force. But the High Court further held
that even if the Rules had no statutory force it was open to it to issue a
mandamus under Art. 226 to the Director, who is a public authority, to refrain
from, giving effect to the Rules which had no statutory force. It 896 therefore
made a direction to the Director not to give effect to his letter of March 20,
1962.
Further it was urged before the High Court
that the Governing Body of the College was not a statutory body and therefore
no writ or direction could issue to it and the remedy of the respondent was to
go to the civil court to enforce his right (if any). The High Court however
held that the words of Art. 226 were wide enough and did not confine its power
to the issue of writs, directions or orders in the nature of mandamus; they
gave power to issue directions, orders or writs which the Court considered
proper in the circumstances of each case and such direction could be issued for
any purpose. The High Court therefore held that as the Governing Body had not
applied its independent mind to the question of leave, it could issue a
direction to it also. The High Court however did not decide whether the
Governing Body was a statutory body or not, and in the result directed the Governing
Body also not to give effect to the letter of the Director dated March 20,
1962.
Thereupon there was a prayer to the High
Court on behalf of the State and the Director for leave to appeal to this
Court, which was refused. Then the State and the Director applied to this Court
for special leave which was granted;
and that is how the matter has come up before
us. It may be mentioned that the Governing Body of the College has been made a
respondent in the appeal before us.
The main question which falls for decision in
this appeal is whether the High Court is right in issuing a writ of mandamus to
the State through the Director directing it not to give effect to the letter of
March 20, 1962. It has not been contended on behalf of the appellants that the
Rules have statutory force and :the arguments before us have been made on the
basis that the Rules have no statutory force and are mere executive
instructions given by the Government to private colleges as a condition for the
implementation of pay scales etc., recommended by the University Grants
Commission for private colleges, these scales being apparently higher than
those existing from before. It seems to us that the High Court was in error in
granting a writ of mandamus against the State through the Director once it
found that the Rules bad no statutory force and were mere administrative
instructions for the purpose of giving grant- in-aid to private colleges. What
grants the State should make to private educational institutions and upon what
terms are matters for the State to decide. Conditions of these grants may be
prescribed by statutory rules; there is 'however no law to prevent the State
from prescribing the conditions 897 of such grants by mere executive
instructions which have not the force of statutory rules. In the present case
the Rules have been framed in order to give revised grants to private colleges
to enable them to give higher scales of pay etc., to their teachers in
accordance with the recommendation of the University Grants Commission. The
Rules have been held by the High Court to have no statutory force, and that is
not disputed before us. In these circumstances it is clear that the Rules are
mere executive instructions containing conditions on which grants would be made
to private colleges to implement the recommendations of the University Grants
Commission as to pay scales etc., of teachers of private colleges. Where such
conditions of grant-in-aid are laid down by mere executive instructions, it is
open to a private college to accept those instructions or not to accept them.
If it decides not to accept the instructions it will naturally not get the
granted which is contingent on its accepting the conditions contained in the
instructions. On the other hand, if the college accepts the conditions
contained in the instructions, it receives the grant-in-aid. If however having
accepted the instructions containing the conditions and terms, the college does
not carry out the instructions, the Government will naturally have the right to
withhold the grant-inaid. That is however a matter between the Government and
the private college concerned. Such conditions and instructions as to grant-in-
aid confer no right on the teachers of the private colleges and they cannot ask
that either a particular instruction or condition should be enforced or should
not be enforced. It is only for the Governing Body of the College to decide
whether to carry out any direction contained in mere administrative
instructions laying down conditions for grant-in-aid. Further it is open to the
Governing Body not to carry out any such instruction which is not based on
rules having statutory force, and it will then be naturally open to the State
to consider what grant to make. But if the Governing Body chooses to carry out
the instruction, it could hardly be said that the instruction was being carried
out under any threat. It is certainly not open to a teacher to insist that the
Governing Body should not carry out the instruction. The rules for the purpose
of grant-in-aid being-as in this case-merely executive instructions confer no
right of any kind on teachers and they cannot apply to the High Court for a
mandamus asking for the enforcement or non enforcement of the rules, even if
indirectly there may be some effect on them because of the grant-in-aid being
withheld in whole or in part. Such mere administrative instructions even though
called rules are only a matter between the Governing Body and the State 898
through the Director and cannot in our opinion form the basis of a petition for
writ under Art. 226 by a teacher.
We may in this connection refer to Messrs.
Raman and Raman v. The State of Madras(1) where this Court had to consider
certain orders and directions issued under s. 43A of the Motor Vehicles (Madras
Amendment) Act, 1948. The question arose whether the orders issued under S. 43A
had the status of law or not. This Court held that such orders did not have the
status of law regulating the rights of parties and must partake of the
character of administrative orders. It was further held that there could be no
right arising out of mere executive instructions, much ness a vested right, and
if such instructions were changed pending any appeal, there would be no change
in the law pending the appeal so as to effect any vested right of a party. That
decision in our opinion governs the present case also, for it has been found by
the High Court, and it is not disputed before us, that the Rules are mere
administrative instructions and have not the force of law as statutory rules.
They therefore confer no right on the teachers of private colleges which would
entitle them to maintain a writ petition under Art. 226 for the enforcement or
non-enforcement. of any provision of the Rules. The Rules being mere
administrative instructions are matters between private colleges and the
Government in the matter of grant-in-aid to such colleges, and no teacher of a
college has any right under the Rules to ask either for their enforcement or
for their non-enforcement. We are therefore of opinion that the High Court was
in error when it granted a writ against the State through the Director, by
which the Director was asked not to give effect to its letter dated March 20,
1962, against the Governing Body of the College.
Then we come to the question whether a writ
could have been issued against the Governing Body of the College. We find
however that there is no appeal by the College against the order of the High
Court issuing a writ against it. In these circumstances we do not think that we
can interfere with the order of the High Court insofar as it is against the
Governing Body of the College. At the same time we should like to make it clear
that we should not be taken to have approved of the order of the High Court
against the Governing Body of the College in circumstances like the pre- sent
and that matter may have to be considered in a case where it properly arises.
Before we leave this case we should like to
add that it was stated on behalf of the State before us that even if the
decision went in (1) [1959] Supp. 2 S.C.R. 227.
899 favour of the State, it would not enforce
r. 7 insofar as the respondent is concerned, as the State was concerned merely
with the clarification of the law on the subject.
In the result we allow the appeal and set aside
the order of the High Court granting a writ against the State through the
Director. The State of Assam has agreed to pay counsel engaged amicus curiae
for respondent, Ajit Kumar Sharma. We therefore pass no order as to costs.
Appeal allowed.
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