Laxman
Dundappa Dhamanekar & Anr Vs. Mngt. of Vishwa Bharata Seva Samiti & Anr
[2001] Insc 509 (27 September 2001)
V.N.
Khare & B.N. Agrawal V.N. Khare, J.
Leave
granted.
There
is an organisation known as Vishwa Bharata Seva Samithi (hereinafter referred
to as the Samithi). The Samithi is running a Higher Secondary
School (hereinafter
referred to as the Institution) in the town of Belgaum, Karanataka. The institution is imparting education upto
higher secondary level. The institution is a private government aided school, recognised
by the Government of Karnataka. The method of appointment and condition of
services of the teachers and employees working in the institutions are governed
by the Karnataka Private Educational Institutions (Discipline and Control) Act,
1975 (hereinafter referred to as the Act) and the Rules framed thereunder known
as the Karnataka Private Educational Institutions (Discipline and Control)
Rules, 1978 (hereinafter referred to as the Rules). In the year 1984, a post of
Assistant Teacher in the institution fell vacant. The Management of the
institution advertised the said vacancy and invited applications for
appointment to the said post. Appellant No. 1, and others, in response to the
said advertisement submitted applications and for that purpose a Selection
Committee was constituted in accordance with the provisions of the Act and the
Rules framed thereunder. Appellant No. 1 was selected and recommended by the
Selection Committee for appointment as Assistant Teacher. The Management, by a
resolution dated 24.6.85, resolved to appoint appellant No. 1 on probation for
a period of one year.
Consequently,
appellant No. 1 joined the service at Madhyamika Vidyalaya Mattiwade w.e.f
1.7.85 on a pay scale of Rs. 750/- to Rs. 1,500/-. It is alleged that appellant
No. 1 continued to teach till June 1994 when he was prevented by the Management
of the School from performing his teaching assignment. Similarly, appellant No.
2 after having been selected by the Selection Committee constituted under the
provisions of the rules was appointed as Assistant Teacher in the institution
on probation for a period of one year. It is alleged that appellant No. 2
continued to work, but subsequently he was also prevented from performing his
teaching duties. In such circumstances, the appellants herein, preferred
separate appeals before the Tribunal constituted under the Act. The Tribunal
allowed both the appeals and directed for reinstatement of the appellants.
Aggrieved, the Management filed two Civil Revision Petitions before the High
Court of Karnataka. The case of the Management, inter alia, was that, since
appellant No. 1 was absent from 25.11.1991 to 1.6.1992, 1.7.92 to 6.7.92,
27.7.92 to 27.7.92, 3.8.92 to 14.8.92 and thereafter from 15.8.92 onwards
remained absent and, as such, the services of the appellant stood automatically
terminated and that the appellant was appointed on probation subject to the
approval of Director of Public Instructions, Belgaum and there being no
approval to the appointments, the appellants have ceased to be teacher in the
institution. However, the case of the appellants before the High Court was that
they were appointed on probation and after the expiry of the probationary
period, they automatically became regular teachers and since no order of
termination having been passed in accordance with the provisions of the Act and
Rules framed thereunder, the action of the Management in not permitting the
appellants to perform their duties was wholly illegal and arbitrary. It was
also their case that there being no provision either under the Act or the Rules
for obtaining approval for appointment as Assistant Teacher, the appointments
of the appellants were in accordance with law. The High Court was of the view
that since the Management did not obtain the approval of the concerned
Inspecting Officer in regard to appointments of the appellants as Assistant Teacher,
the appellants have ceased to be teacher in the institution. In that view of
the matter, the Civil Revision Petitions filed by the Management were allowed
and the order of the Tribunal was set aside. It is against the said judgment
and order of the High Court, the appellants have preferred these appeals by way
of Special Leave Petitions.
Learned
counsel appearing for the appellants urged, firstly, that there being no
requirement either under the Act or Rules for the Management to obtain approval
of the Head of the Department in respect of the appointments of the appellants
as Assistant Teacher in the institution, the view taken by the High Court is
erroneous. Secondly, that the method of appointment and conditions of service
of teachers in private government aided institution being governed by the
provisions of the Act and Rules framed thereunder, any requirement of approval
of regular appointments of teachers under the non-statutory administrative
orders contained in grant-in- aid code would not make the appointments of the
appellants invalid.
Thirdly,
that the appellants having been appointed on probation, the appellants
automatically became confirmed teachers of the institution after completion of
their probationary period and fourthly, that, in any case, there being no
provision under the Rules for automatic termination of service in the event of
the teacher being absent, the alleged automatic termination of service of the
appellants is illegal.
Whereas,
learned counsel appearing for the respondent urged that the grant-in-aid rules,
though may be administrative in nature, it provides for requirement of
obtaining approval of the Inspecting Officer in the matter of appointment of
teachers in the government aided institutions and in the absence of such
approval, the appointment of the appellants was nullity and they were not
entitled to continue in service.
On the
argument of learned counsel for the parties, the first question that arises for
consideration is whether there was any requirement of law for the Management to
obtain approval in regard to appointment of teachers in the institution.
Section 3 of the Act provides that subject to other provisions of the Act, the
State Government, after previous publication of the rules may, by notification,
make rules in respect of matters relating to the code of conduct and conditions
of service of employees. Sub-section (3) thereof provides that every private
government aided institution shall send intimation of having adopted the model
rules or modified its rules consistent with the rules framed by the State
government to the Director of Technical Education or to an Officer not below
the rank of a District Deputy Director of Public Instructions. Sub-section (4)
of Section 3 further provides that where a private educational institution
fails to take action as required, the rules as framed by the State government
shall be deemed to have been adopted by such institution and they shall be the
rules governing its employees. Section 6 provides for termination of service
and procedure for imposing penalties. Section 15 provides that the State
Government may by notification and after previous publication, make rules to
carry out the purposes of this Act.
In
exercise of power conferred by Sections 3 and 15 of the Act, the Government of
Karnataka has framed the rules. Rule 6 provides method of recruitment. It would
be appropriate to reproduce rule 6 of the Rules which runs as under:
6.
Method of recruitment. –
(1)
Any appointment arising for a period of more than three months in any
institution shall be made by selection from among persons who had applied in
pursuance of an advertisement in news papers:
Provided
that an employee in one institution may be appointed in another institution
under the same or different Management in accordance with rules approved by
Government in respect of each category of institution.
(2)
For the purpose of recruitment under sub- rule (1) the Board of management
shall constitute - (a) a selection committee for appointment of the teaching
and non-teaching posts other than the post of the head of the institution
consisting of-
(i) the
President or the Head of the Board of Management or his nominee;
(ii) the
Head of the Department or his nominee;
(iii) the
Head of the Institution;
(iv) an
educationist or an expert in the subject to which recruitment is to be made, to
be selected by the Board of Management from a panel of names furnished by the
Head of the Department.
A
perusal of Rule 6 would show that there is no requirement for Management to
take any approval from the Head of the Department who is the Director of Public
Instructions, in respect of regular appointment of a teacher selected by the
Selection Committee constituted under sub-rule (2) of Rule 6 of the Rules.
Whereas, under sub-rule (5) of Rule 6, if the Management appoints any teacher
for a period of 3 months or less, or for part time, such an appointment is required
to have the approval by the Head of the Department. It appears that the
omission to obtain approval of Head of the Department in case of a regular
teacher under the rules is deliberate.
Reason
being that the Head of the Department himself or his nominee sits in the
Selection Committee and it is because of that reason, the approval of the Head
of the Department in case of a regular appointment has been dispensed with
under the rules. Whereas, if the appointment is made on a ad hoc basis by the
Management for a period of 3 months or less, or for part time, the same is
required to have the approval of the Head of the Department apparently for the
reason that the Head of the Department or its nominee is not party to the
decision to make ad hoc appointment in the institution. We are, therefore, of
the view that the rules do not contemplate for obtaining approval of the Head
of the Department i.e. the Director of Public Instructions where the
appointment is to be made on the basis of the recommendation of Selection
Committee constituted under sub-rule (2) of rule 6 of the Rules.
Learned
counsel appearing for the respondent urged that even if the rules do not
provide for obtaining approval of the Head of the Department, in case of
appointment of a regular teacher, the same is required under non- statutory
rule 16 of Grant-in-Aid Code for Secondary Schools. What he argues is that even
though the rules contained in the Code are non-statutory and are merely
administrative instructions, yet they supplement the rules and, therefore, any
breach of administrative or executive instruction will make the appointment of
the appellants invalid.
We
noticed earlier, the appointment and conditions of service of teachers in
private government aided institution are governed by the provisions of the Act
and the statutory rules. The said provisions are self- contained code relating
to the appointments of teachers in private aided institutions. The field
relating to method of appointment of regular teacher in a government aided institution
is fully covered by the provisions of the Act and the rules and we do not find
any provisions either in the Act empowering the Government to supplement the
rules by executive instructions. It is no doubt true that if the Act had
empowered the State Government to issue administrative instructions by way of
supplementing the rules, the position would be different. In such a case, the
Government would have power to fill up the gaps in the rules by issuing
administrative instructions if the rules are silent on the subject provided the
same is not inconsistent with the statutory rules already framed. In the
present case, the Act does not empower the State Government to supplement the
rules by issuing administrative instructions or orders. In the absence of such
provision in the Act, it is not open to the government to supplement the rules
by the executive orders. If we accept the argument of learned counsel for the
respondent, it would be repugnant to Sections 3 and 15 of the Act.
The
matter can be examined from another angle. Rule 16 of Grant-in- Aid Code for
Secondary Schools runs as under:
16.
General Conditions of aid:- Grant-in-aid is permissible only to those
institutions which have been recognised by the Department. It is subject to the
following conditions:-
(i)
The Management shall have deposited the stability fund as indicated in rule 9
(d) of Chapter III.
(ii)
The Management shall credit the prescribed fees collected, into the Treasury as
prescribed in rule 69.
The
other amounts collected by way of grants, donations, interest on endowments,
deposits, and other items realised by the institutions shall be credited to the
accounts of the institution and shall be reflected in annual receipts and
expenditure statement of the institution.
Failure
on the part of the Management or the Head of the Institution to collect and to
credit the fees so collected to Government funds as directed above, may entail
stoppage of grants and withdrawal of recognition.
(iii)
The Management shall maintain the account of the Institution and furnish
monthly and other periodical returns to the Department in accordance with the
prescribed rules.
(iv)
The Management shall get the accounts of the Institutions audited by an auditor
not connected with the management in any way, from the list of auditors
approved by the Education Department.
(v)
The Management shall keep the accounts of the Institution open to inspection
and audit by Inspecting and other officers deputed by the Director or by the
Accountant General or by their nominees.
(vi) (a)
The Management shall appoint teachers and other staff of the Institution in
accordance with the rules prescribed in this behalf and shall observe the
conditions of service prescribed therein.
(b)
The Management shall make available the staff members selected by the
Additional Director of Examinations for being utilized for purposes of Public
Examinations conducted by the Department or Board. Their period of absence in
all such cases will be treated as on other duty and their salary during that
period will be admitted for grant purposes.
(vii)
The Management shall report to and obtain the approval of the inspecting
officer concerned for all appointments and changes made in the staff of the
institution. It shall be competent for the inspecting officer to prohibit the
employment of any person who is not duly qualified or who, for any other
reasons to be recorded in writing, is considered unfit to be on the staff.
Persons who are suffering from contagious diseases or serious physical defects
should not be appointed by the Management as teachers in Schools. In doubtful
cases a reference may be made to the inspecting officer concerned and his
instructions obtained.
An
appeal against the decision of the inspecting officer shall lie with the next
superior authority whose decision shall be final.
The
aforesaid non-statutory rule was substituted in the Code by government order
dated 17.6.67 and whereas the statutory Rules governing the method of
appointment of teacher came to be published in the gazette on 31.1.78. It is,
therefore, manifest that non-statutory Rule 16 was never intended to supplement
the statutory Rules and, therefore, not applicable in the case of appointment
of teacher in private government aided institutions.
Yet,
there is another reason why the non-statutory Rule 16 is not applicable in the
case of appointment of teachers in the institution. The administrative
instructions pertaining to grant-in-aid for secondary schools have been issued
with the object of extending and improving institutions, and for that purpose a
sum of money is annually allocated by the government for distribution as
grant-in-aid to schools subject to observance to the conditions specified
therein. The conditions embodies in Rule 16 of the grant-in-aid code provide
for the conditions under which financial assistance would be made available to
the Management of the institution by the government. If there is a breach of
the conditions of the grants-in-aid, it is open to the government either to
suspend or cancel the financial grant to the institution.
But,
such breach of conditions of the grant-in-aid code would not make the
appointment of a teacher in the institutions invalid when the method of
appointment of teachers in the institution is fully covered by the Act and the
statutory rules. It is, however, true that for breach of administrative
instructions which have no statutory force, a public servant or the person
guilty of such a breach can be subjected to disciplinary action; but the same
cannot be pressed into service for action which has the effect of modifying the
statutory rules. We are, therefore, of the view, that breach of non- statutory
Rule 16 would not render the appointments of appellant invalid.
So far
the second question that arises for consideration is whether the appellants
having been appointed on probation they would be deemed to have become regular
teachers on expiry of probationary period, we are not inclined to go into that
question in view of the fact that even though the appellants were probationers,
their services could not be ceased to have effect either by non approval by the
Head of the Department or by their remaining absent from their respective
duties. There is no provision either in the Act or the Rules providing for
automatic termination of services of a teacher on account of being absent
without leave. If any teacher remains absent without any leave, it is open to
the Management to terminate the services of such teachers only after complying
with the provisions of the Act and the rules or principles of natural justice.
In the present case, we do not find any provision either in the Act or Rules
providing for automatic termination of service of a teacher in the event of a
teacher remaining absent without leave. In the absence of such a provision in
the Act or Rules, the alleged deemed termination of services of the appellants
without giving any opportunity to the appellants was unlawful and deserves to
be set aside.
Before
we part with the case, we would like to observe that we are in agreement with
the view taken by the High Court that it is unbelievable that the appellants
were not paid their salary for the last 10 years, as at no point of time, the
appellants had made any grievance either to the Head of the Department or to the
Management in respect of non-payment of salary. If the appellants were not paid
salary, they ought to have made representation to the Head of the Department or
gone to a court of law for recovery of arrears of salary which they did not do
so. Therefore, they are not entitled to arrears of salary for the last ten
years. Under such circumstances, we are of the view that the appellants are
entitled to arrears of salary only for the last 3 years. In the present case,
we also find that the management was guilty of wilful default and
non-observation of Rules. Assuming there was requirement of obtaining approval
of Head of the Department in regard to appointment of the appellants, which the
management is now contending, it does not appear to reason why management did
not take any steps for obtaining approval of the Head of the Department and
permitted the appellants to teach in the institution for long period of ten
years and suddenly the management treats the services of the appellants having
automatically terminated. For such wrongful act on the part of the Management,
we direct that arrears of salary to the appellants shall be paid by the
Management from its own funds and not from the financial assistance received
from the Government.
For
the aforesaid reasons, we are of the view that the appeals deserve to be
allowed. The judgment under challenge is set aside. The appeals are accordingly
allowed. There shall be no order as to costs.
...J.
(V.N.
KHARE) ...J.
Back
