Vidya Dhar
Pande Vs. Vidyut Grih Siksha Samiti & Ors [1988] INSC 317 (10 October 1988)
Ray,
B.C. (J) Ray, B.C. (J) Thakkar, M.P. (J)
CITATION:
1989 AIR 341 1988 SCR Supl. (3) 442 1988 SCC (4) 734 JT 1988 (4) 84 1988 SCALE
(2)916
ACT:
Madhya
Pradesh Madhyamik Shiksha Adhiniyam, 1955:
Sections
28(2)(d) and Regulations 61, 71 and 79 framed thereunder--Regulations have
force of law--Termination of services of Higher Secondary School Principal in
contravention of Regulation 79--Held illegal and quashed.
HEAD NOTE:
The
appellant was appointed from July 3, 196X as
principal of the School run by the respondent society, a body registered under
the M.P. Non-trading Corporation Act, 1962. On June 23, 1971 the appellant's services were terminated with immediate effect
by giving one month's salary in lieu of notice. The appellant made
representation to the Divisional Superintendent of Education who directed the
Society to rescind the order of termination because, according to him, the
termination of the appellant was wrongful being in breach of Regulation 79 of
the Regulations framed by the Board of Secondary Education under section 28(2)(d)
of Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1955. The appellant however was
not re-instated by the society.
The
appellant therefore filed a petition in the High Court, which was dismissed.
The High Court held that (1) the said Regulations had on statutory force and
therefore the violation in this case of the procedure prescribed in Regulations
71 and 79 would not render the order of termination null and void; (2) the
appellant's remedy was only by an action for damages for breach of master and
servant contract; and (3) the school being run by a private body, no writ of
mandamus could he issued.
Allowing
the appeal, it was,
HELD ection
28(2)(d) of the Act confers power on the Board to make Regulations regarding
the conditions of recognition of the Institutions as well as for framing of
School Code" to ensure minimum standard of efficient and uniform
management of such schools. [447B-C] PG NO 442 PG NO 443
(2) As
has been held by this Court in Sukhdev Singh's case, there is no subtantial
difference between a rule and a regulation inasmuch as both are subordinate
legislation under powers conferred by the statute. There is therefore, no
escape from the conclusion that the regulations, in the present case, have
force of law.1449B]
(3) A
observed in Sukhdev Singh's case, the doctrine of ultra vires as applied to
statutes, rules and orders should equally apply to the regulations and any
other subordinate legislation. [450G]
(4)
The order of termination of the appellant from the post of Principal of the Higher Secondary School in breach of Regulation 79 is illegal and as such the same
is liable to be quashed as the Regulations have got statutory force.
The
appellant is liable to be reinstated in the service as Principal of the said
school. [454A-B]
(5)
The Higher Secondary School in question though run by a private trust receives 100%
grant from the Government and as such it is amenable to the writ jurisdiction
for violation of the provisions of the said Regulations in passing the order of
termination of service of the appellant. 454B-C] Dr. Ram Pal Chaturvedi v.
State of Rajasthan, [1970] I SCC 75; Indian Airlines
Corporation v. Sukhdeo Rai, [1971] 2 SCC 192; Sukhdev Singh & Ors. v. Bhagatram
Sardar Singh Raghuvanshi and Anr., [1975] 3 SCR 619; Prabhakar Ramakrishna Jodh
v. A.L Pandi and Anr., [1965] 2 SCR 713; Manmohan Singh Jaitla v. Commissioner,
U.T. of Chandigarh & Ors., [1984] Supp. S.C.C. 540; and Indra Pal v.
Managing Committee,, Model Inter College Thora, [l984] 3 SCC 384, referred to.
CIVIL,
APPELLATE JURISDICTION: Civil Appeal No. 1697 Of 197 From the Judgment and
Order dated 22.1.1972 of the Madhya Pradesh High Court in Misc. Petition No.
358 of 1971.
M. Narayan,
Mr. B. Shetya and Vineet Kumar for the Appellant.
S.S. Khanduja,
Y.P. Dhingra, Baldev Krishan Satija and T.C. Sharma for the Respondents.
The
Judgment of the Court was delivered by PG NO 444 RAY, J. This appeal by special
leave is against the judgment and order dated 22nd January, 1972 rendered by
the High Court of Madhya Pradesh at Jabalpur in Miscellaneous Petition No. 358
of 1971 dismissing the writ petition holding that the Regulations framed by the
Board of Secondary Education, Madhya Pradesh under Section 28(2)(d) of the
Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1955 have no statutory force and as
such termination of service in violation of Regulation Nos. 7 1 and 79 does not
entitle the appellant to a declaration that the termination was illegal and for
a direction for his reinstatement in service.
The
matrix of the case in short, is that the appellant was appointed as Head Master
by the Managing Committee of Vidyut Grih Siksha Samiti, Korba on probation for
a period of one year on a pay-scale r of Rs.250-10-290-15-350-EB-20- 450 with
effect from 3.7.1968. Meanwhile, the High School became a Higher Secondary
School and as such on September 1, 1969 the Managing Committee appointed the
appellant as Principal temporarily on a pay-scale of 1) Rs.:Z75-25-300-
15-405-EB-20-550-25-700 with effect from July 3, 1968. The above scale was made
applicable to him with retrospective effect i.e. from July 3, 19 F.N., the date
of his appointment. The appointment letter further states as follows:
"...................
The
appointment will be governed by the rules and regulations laid down by the
Education Department of Madhya Pradesh State Government for the recognised
Schools in the State unless and otherwise specified from time to time.
The
appointment can be terminated on one month's notice or pay thereof on either
side." This School was established by Vidyut Grih Siksha Samiti, Korba, a
body registered under the M.P. Non- Trading Corporation Act, l962. The Society
under its bye- laws has a Foundation Committee which is G its Governing Body
and an Executive Committee, i.e. Managing Committee. On June 23, 1971 the Managing Committee dispensed
with the services of the appellant with immediate effect by giving him one
month's salary in lieu of notice. The appellant made a representation against
this order to the Divisional Superintendent of Education who by his letter
dated June 24, 1971 directed the Secretary of the school to rescind the order
of termination of the services of the appellant and to PG NO 445 hand over
charge of the school to the appellant otherwise the recognition of the School
will be withdrawn. This letter was written on the ground that the termination
of the appellant was wrongful being in breach of Regulation 79.
However,
the appellant was not reinstated pursuant to the said letter. The appellant,
therefore, moved a writ petition before the High Court of Madhya Pradesh at Jabalpur. This was registered as
Miscellaneous Petition No. 358 of 1971.
The
writ petition was heard by a Division Bench of the said High Court and it was
held that Regulation No. 71 as well as Regulation No. 79 framed by the Board of
Secondary Education under Section 28(2)(d) of Madhya Pradesh Madhyamik Adhiniyam,
1955 have no statutory force following the decision of this Court in the case
of Dr. Ram Pal Chaturvedi v. State of Rajasthan and Ors., [1970] 1 SCC 75 and
as such the termination of service of the appellant in violation of the
procedure prescribed in Regulation No. 71 and 79 of the said Regulations would
not render the impugned order null and void. It could at best be a wrongful
dismissal from service by the master and the appellant's remedy is only by an
action for damages he might have sustained in consequence of the breach of the
master and servant contract. It was also held that the School in question was
run by a private body and as such no writ of mandamus could be issued. The
Court further held that an order cannot be made against the society compelling
the re- instatement of the appellant as it is in the realm of contractual
rights and obligations. The writ petition was thus dismissed. Against this
judgment and order the instant appeal has been filed on special leave this
Court.
In
order to effectively consider the question whether these Regulations have got
statutory force or not it is necessary to set out hereinbelow the relevant
Regulations:
"Regulation
61: No Educational Institution shall be recognised, or continued to be
recognised unless it complies with the following requirements, namely:
(1)
That the Educational Institution shall comply with the conditions laid down in
Chapter XII of these Regulations.
(2) that
there shall be a Managing Committee as defined under the Adhiniyam consisting
of not more than 10 members of which two shall be the Head of the Institution
and a nominee of the Educational Officer concerned and that the Governing Body
of Managing Committee shall be registered under the Societies Registration Act.
PG NO
446 Regulation 71: All Principal, Head Masters, Lecturers and Teachers, except
those appointed temporarily for a period of less than one year, shall be on
probation or a term of one year which may be extended to two years. If after
two years service any incumbent is continued in his appointment, he shall,
unless the appointing authority, for reasons to be recorded in the writing,
otherwise directs, be deemed to have been confirmed in that appointment. On
being confirmed the incumbent shall sign a contract of service in the form one
or two (appended to these Regulations) as the case may be, as soon as
practicable.
Regulation
79 (1): The Managing Committee shall not terminate the services and reduce the
pay of Principal or Head Master appointed on written contract without first
obtaining Director's sanction for holding a full enquiry into the charges
against him. The incumbent shall be given in writing a statement of the charges
against him, and also be afforded an opportunity of defending himself. His
previous services and character with reference to this incidental file and
Service book shall also be taken into consideration before arriving at a
decision.
(2) No
decision as to termination of service or reduction of a Principal or a Head
Master shall be valid, unless passed at Special Meeting by a majority of
two-thirds of members of the Managing Committee. No such resolution shall be
valid, if passed at an adjourned meeting.
3) The
Principal or Head Master have a right of appeal to the Director against
decision of the Managing Committee.
The decision
of the Director shall be final." These Regulations were framed under the
provision of Sectio 28(2)(d) of the said Act which reads as follows:
"Sec.
28---Powers of Board to make Regulations-- (1) The Board may make Regulations
for the purpose of carrying into effect the provisions of this Act (2) In
particular and without prejudice to the generality of the foregoing power, the
Board may make Regulations providing for all or any of the following matters,
namely:
PG NO
447 (d) The conditions of recognition of institutions for the purposes of
admission to the privileges of the Board and framing of a School Code to ensure
a minimum standard of efficient and uniform management of such schools."
It thus appears that Section 28(2)(d) confers power on the Board to make
Regulations regarding the conditions of the Institutions as well as for framing
of "School Code" to ensure a minimum standard of efficient and
uniform management of such schools. Regulation 71 clearly provides that
Principals, Head Masters, Lecturers and Teachers when appointed shall be
appointed on probation for a period of one year which may be extended to two
years. It also provides that after two years of service if any incumbent is
continued in his appointment he shall be deemed to have been confirmed to that
appointment unless the Appointing Authority for reasons recorded in writing
otherwise directs.
In
this case the appellant has been appointed on probation as Principal with
effect from July 3, 1968 and as he was allowed to continue for more than two
years he shall be deemed to have been confirmed in the post of Principal of the
said School. The Managing Committee of the School by its letter dated June 23,
1971 terminated the services of the appellant after giving him one month's salary
in lieu of notice without serving on him any charges against him, Without
holding any enquiry and also without giving him any opportunity of hearing
before making the order terminating his service as required under the provision
of Regulation 79(1) of the said Regulations. The impugned resolution was also
not passed at a special meeting by a majority of ,2/3rd of the members of the
Managing Committee as provided in clause (2) of the said Regulation 79. The
High Court though found that there is a violation of the provisions of
Regulation 71 and 79 yet as these Regulations have got no statutory force the
appellant could not get the relief of a declaration that the order of
termination of his service was illegal and invalid and also could not get an
order for his re-instatement in service as his appointment was in the realm of
a contract of master and servant and his only remedy was an action for wrongful
termination from service.
Two
questions therefore fall for consideration namely whether the Regulations framed
pursuant to a Statute can be said to have a statutory force the breach of which
will entitle the aggrieved employee to get a declaration that the PG NO 448
impugned order was invalid and illegal and the employee should be allowed to
continue in service or should be re- instated in service. The High Court has
relied upon the decision of this Court in Dr. Ram Pal Chaturvedi v. State of
Rajasthan and Ors.,(supra) as well as Indian Airlines Corporation v. Sukhdeo Rai,
[ 1971] 2 SCC 192. In the case of Dr. Ram Pal Chaturvedi v. State of Rajasthan
and Ors., the appointment of three respondents namely Dr. D.G. Ojha, Dr. P.D. Mathur
and Dr. Rishi as Principal of Sr. Patel Medical College, Bikaner, Rabindra Nath
Tagore Medical College, Udaipur and Medical College, Jodhpur respectively was
challenged on the ground that though they fulfilled the qualifications
prescribed by Rule 30(4) of the Rajasthan Medical Service (Collegiate Branch)
Rules 1962 they had not the requisite experience as provided in Ordinance No. 65
framed under the University of Rajasthan Act of 1946 and as such their
appointments were not valid and legal. The Syndicate of the Rajasthan
University constituted under Section 21 of the Act is empowered under Section
29 read with Section 30 to make ordinances, consistent with the Act and
statutes, to provide for the matters listed in Section
29.
These matters include in Clause VI "emoluments and conditions of service
of University teachers". The Syndicate made the ordinances pursuant to the
provisions of this Section. It was held that "The field of operation of
this Ordinance appears to us to be restricted to the question of affiliation of
the colleges concerned with the Rajasthan University. It is note-worthy that
the University has not thought fit to object to these appointments. If there is
any violation of a provision of this Ordinance then that may appropriately be
taken into account by the Rajasthan University for the purpose of withdrawing
or refusing to continue affiliation of the colleges in question. But clearly
that would not render the impugned appointments null and void a fortiorari that
can not confer any right on Dr. Ram Pal Chaturvedi to approach the High Court
by means of petition for writ of quo-warranto to challenge the appointments of these
three persons This decision is not an authority for the proposition that
Regulation framed pursuant to a Statute do not have a statutory force. High
Court was in error in holding otherwise. This question is, however, concluded
in favour of the appellant by a decision of this Court rendered by a 3-Judge
Bench.
PG NO
449 The question whether a regulation framed under power conferred by the
provisions of a Statute has got statutory power and whether an order made in
breach of the said Regulation will be rendered illegal and invalid, came up for
consideration before the Constitution Bench in the case of Sukhdev Singh &
Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr., [ 1975] 3 SCR 619. In this
case it was held that:
"There
is no substantial difference between a rule and a regulation inasmuch as both
are subordinate legislation under powers conferred by the statute. regulation
framed under a statute applies uniform treatment to every one or to all members
of some group or class. The Oil and Natural Gas Commission, the Life Insurance
Corporation and Oil and Natural Gas Commissionaire all required by the statute
to frame regulations inter alia for the purpose of the duties and conduct and
conditions of service of officers and other employees. These regulations impose
obligation on the statutory authorities. The statutory authorities cannot
deviate from the conditions of service. Any deviation will be enforced by legal
sanction of declaration by courts to invalidate actions in violations of rules
and regulations.
The
existence of rules and regulations under statute is to ensure regular conduct
with a distinctive attitude to that conduct as a standard. The statutory
regulations h the cases under consideration give the employee a statutory
status and impose restriction on the employer and the employee with no option
to vary the condition.'' There is therefore, no escape from the conclusion that
regulation have force of law. The order of the High Court must therefore, be
reversed on this point unhesitatingly.
In
Indian Airlines Corporation v. Sukhdeo Rai the respondent who was an employee
of the Indian Airlines Corporation Was found guilty of certain charges and
dismissed from service after an enquiry held in breach of the procedure laid
down by the Regulations made by the appellant under Section 45 of the Air
Corporation Act, 1953.
A suit
was filed by the respondent challenging the order of termination It was decreed
by the Trial Court holding that the dismissal was illegal and Granted a
declaration that he be continued to remain he service. The Appellate Court as
well as the High Court confirmed the decree. On appeal this Court held that the
relationship between the appellant,Indian Air lines Corporation and the
respondent would in such cases be contractual i.e. as between a master PG NO
450 and servant and the termination of that relationship would not entitle the
servant to a declaration that his employment had not been validly determined.
The termination though wrongful in breach of the terms and conditions which
governed the relationship between the Corporation and the respondent yet it did
not fall under any of the three well recognised exceptions and therefore the
respondent was only entitled to damages and not to a declaration that this
dismissal was null and void. The respondent has sought support from this
decision. We are afraid the contention is wholly untenable. The decision in
Indian Airlines' case has in terms been declared to be no longer good law and
has in terms been overruled in Sukhdev Singh's case (1975) 3 SCR 619 by the
Constitution Bench. C Says Ray, C.J. speaking for the Court:
"In
the Indian Airlines case this Court said that there being no obligation or
restriction in the Act or the rules subject to which only the power to
terminate the employment could be exercised the employee could not contend that
he was entitled to a declaration that the termination of his employment was
null and void. In the Indian Airlines Corporation case reliance was placed upon
the decision of Kruse v Johnson, [1898] 2 Q.B. 91 for the view that not all
by-laws have the force of law. This Court regarded regulation as the same thing
as by-laws. In Kruse v. Johnson the Court was simply describing the effect that
the county by-laws have own the public. The observations of the Court in Kruse
v. Johnson, that the by-law "has the force of law within the sphere of its
legitimate operation" are not qualified by the words that it is so ''only
when affecting the public or some section of the public ..
ordering
something to be done or not to be done and accompanied by some sanction or
penalty for its non- observance.'' In this view a regulation is not an
agreement or contract but a law binding the corporation, its officers, servants
and the members of the public who come within the sphere of its operations. The
doctrine of ultra vires as applied to statutes, rules and orders should equally
apply to the regulations and any other subordinate legislation.
The
regulations made under power conferred by the statute are subordinate legislation
and have the force and effect, if validity made, as the Act passed by the
competent legislature.
In
U.P. Warehousing Corporation and Indian Air-lines PG NO 451 Corporation case
the terms of the regulations were treated as terms and conditions of
relationship between the Corporation and its employees. That does not lead to
the conclusion that they are of the same nature and quality as the terms and
conditions laid down in the contract employment. Those terms and conditions not
being contractual are imposed by one kind of subordinate legislation, Viz.
regulations
made in exercise of the power conferred by the statute which constituted that
Corporation. of the regulations are not terms of contract. In the Indian
Airlines Corporation case under section 45 of the Air Corporations Act, 1953,
the Corporation had the power to make regulations not inconsistent with the Act
and the rules made by the Central Government there under. The Corporation bad
no power to alter or modify or rescind the provisions of these regulations at
its discretion which it could do in respect of the terms of contract that it
may wish to enter with its employees independent of these regulations. So far
as the terms of the regulations are concerned, the actions of the Corporation are
controlled by the Central Government.
The
decisions of this Court in U.P. Warehousing Corporation and Indian Airlines
Corporation are in direct conflict with decision of this Court in Naraindas Barot's
case which was decided by the Constitution Bench.
Under
the circumstances the plea of the respondents is meritless.
In Prabhakar
Ramakrishna Jodh v. A.L. Pande and Anr., [1965] 2 SCR 713 a question arose
whether the provisions of ordinance 20 otherwise called the College Code framed
by the University of Saugar under Section 32 and Section 6(6) of the University
of Saugar Act, 1946 embodying the terms and conditions of teachers of the
College affiliated to the University, have the force of law. It was held that:
"The
provisions of Ordinance 20 i.e. the College Code " have got statutory
force. It confers legal rights on the teachers on the affiliated colleges and
it is not a correct proposition to say that the "College Code" merely
regulates the legal relationship between the affiliated colleges and the University
alone. We do not agree with the High Court that the provisions of the
"College Code" constitute power of management. On the contrary we are
of the view that the PG NO 452 provisions of the "College Code"
relating to the pay scale of teachers and their security of tenure properly
fall within the statutory power of affiliation granted to the University under
the Act. It is true that Clause 7 of the Ordinance provides that all teachers
of affiliated colleges shall be appointed on a written contract in the from
prescribed in Sch. A but that does not mean that teachers have merely a
contractual remedy against the Governing Body of the College. On the other
hand, we are of opinion that the provisions of Clause 8 of the Ordinance
relating to security of the tenure of teachers are part and parcel of the
teachers' service conditions and, as we have already pointed out, the
provisions of the "College Code" in this regard are validly made by
the University in exercise of the statutory power and have, therefore, the
force and effect of law. It follows, therefore, that the "College
Code" creates legal rights in favour of teachers of affiliated colleges
and the view taken by the High Court is erroneous. ' In the case of Manmohan
Singh Jaitla v. Commissioner, U. T. of Chandigarh and Ors., [1984] (Supp) SCC
540 the appellant was appointed as Head Master of an aided School.
He was
later confirmed by the competent authority. A charge- sheet was served on the
appellant and disciplinary enquiry was held against him under section 3 of the
Punjab Aided Schools (Security of Service) Act. The enquiry was however,
withdrawn later on and his seven years service was terminated by invoking the
service agreement on ground that his service was no more required by the
School. This order was challenged by a writ petition before the High Court
which rejected the same in limine but by a speaking order observing that as the
School cannot be said to be 'other authority' under Article 12, it was not
amenable to the writ jurisdiction of the High Court. The Supreme Court negatived
the said finding of the High Court and held as follows:
"The
matter can be viewed from a slightly different angle as well. After the
decision of the Constitution Bench of this Court in Ajay Hasia v. Khalid Mujib Sehravardi,
[1981] 1 SC 722 the aided school receiving 95% of expenses by way of grant from
the public exchequer and whose employees have received the statutory protection
under the 1969 Act and who is subject to the regulations made by the Education
Department of the Union Territory of Chandigarh as also the appointment of
Headmaster to be valid must be PG NO 453 approved by the Director of Public
Instructions, would certainly be amenable to the writ jurisdiction of the High
Court. The High Court unfortunately, did not even refer to the decision of the
Constitution Bench in Ajay Hasia, case rendered on November 13, 1980 while
disposing of the writ petition in 1983. in 1983. In Ajay Hasia case, Bhagwati,
J.
speaking
for the Constitution Bench inter alia observed (SCC p. 737, para 9) that
"where the financial assistance of the State is so much as to meet almost
entire expenditure of the Corporation, it would afford some indication of the
Corporation being impregnated with governmental character".
Add to
this "the existence of deep and pervasive State control may afford an
indication that the corporation is a State agency or instrumentality".
Substituting the words 'public trust' in place of the 'corporation' and the
reasons will mutatis mutandis apply to the School. Therefore, also the High
Court was in error in holding that the third respondent-School was not amenable
to the writ jurisdiction of the High Court." In Indra Pal Gupta v.
Managing Committee, Model Inter College Thora, [ 1984] 3 SCC 384 the appellant
was appointed on probation for one year as Principal of Model Inter College, Thora,
District Bullandshahr in accordance with the procedure prescribed by the
Intermediate Education Act, 1921 (U.P. Act No. 2 of 1921) and the Regulations
made there under. The period of probation was however, extended by the Managing
Committee of the said Model Inter College for a further period of one year. On
April 27, 1969 the Managing Committee adopted a resolution to terminate the
services of the appellant in consideration of the report of the Manager of the
College to the effect that due to his unsatisfactory services, it would not be
in the interest of the Institution to permit him to continue as probationer any
longer. The service of the appellant was thus terminated without complying with
the mandatory procedure laid down in Regulations 35 to 38 which provided for
forming a sub- committee to enquire into the allegations against the Principal
and to frame definite charges against the Principal and to give him opportunity
of hearing. It was held that the order of termination made in breach of the
provisions of the said Regulations which were made in pursuance of the
provisions of the said Act, is illegal and invalid and as such the same was
quashed. The appellant was further declared to be in service of the College.
On a
conspectus of these decisions the irresistible conclusion follows that the
impugned order of termination of PG NO 454 the appellant from the post of
Principal of the Higher Secondary School in breach of the Regulation 79 framed
under the said Act is illegal and as such the same is liable to be quashed as
the Regulations have got statutory force. The appellant is liable to be
re-instated in the service as Principal of the said College. We also hold that
the Higher Secondary School in question though run by a private trust receives
100% grant from the Government as in evident from the affidavit sworn on behalf
of the appellant and as such it is amenable to the writ jurisdiction for
violation of the provisions of the said Regulations in passing the impugned
order of termination of service of the appellant.
We
therefore, set aside the order passed by the High Court which, in our opinion,
is unsustainable and direct the respondents to re-instate the appellant in the
service of the said College. Considering the facts and circumstances of the
case we are of the opinion that the ends of justice would be met by directing
the respondents to pay to the appellant a sum equal to 50% of the salaries and
allowances from the date of termination till his re-instatement in service as
it appears that the appellant was not in employment during this period. The
appeal is, therefore.
allowed
with costs.
R.S.S.
Appeal allowed.
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