TMI Blog1971 (3) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... rises 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. 3. 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 Eduction Department of the Government of Madras, and since the reorganisation 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 Rules 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. 4. The suit was resisted by the Management. They contended that they were not bound by the Madras Elementary E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular 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. 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of the elementary schools and admission of primary elementary schools to grants-in-aid were, as stated earlier, repealed by Act 2 of 1939, but the power to frame rules, especially for the purpose of declaring the conditions subject to which schools may be admitted to recognition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; was ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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. 13. 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 Court. 14. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided 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 relationship 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 Section 21(b) of Specific Relief Act, 1877. 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. 18. The appeal first came up for hearing in March 1970 before Shah, J. (as he then was) and Grover, J. Not satisfied with the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mparting of such education through elementary schools, including those run by private managements, but recognised by Government through its Education Department. Section 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. Section 56 authorised the Government to make rules not inconsistent with the provisions of the Act to carry out all or any of the purposes of this Act , and in particular Clause (h) of Sub-section (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 Sections 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. 23. The Rules were first framed in 1922 under Section 56 and contained provisions regarding recognition and aid. These Rules were clearly statutory rules. Curiously, although Chs. II and IV were deleted in 1939, Clause (h) of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 expiry of the probation period the teacher would be deemed to be permanent. Clause (2) of Rule 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 Sub-clause (ii) of Clause (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-clause (ii), e.g., for wilful neglect of duty, serious misconduct, gross insubordination, incompetence etc. The first provision to Sub-clause (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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 56. Besides, the fact is that when Part II 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 Section 56. If they were claimed to have been so made, they would, firstly, have been pre-published as required by Section 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 II Rules cannot be said to be statutory rules framed under Section 56, although the power to make such rules is still retained with the Government by reason of Clause (h) being still there in Section 56(2). 26. 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 ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter 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 on 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 teacher 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 not complied with. But that does not mean that Part II Rules confer upon a third party, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 , 1962(1) An. W.R. 263 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 and aid were quasi judicial and held that these rules were statutory rules. But this view was on an assumption that even Part II Rules were made under Section 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 re-issuance of the rules thereafter and the distinction made by the Madras Government itself between Part I and Part II 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 1970(II) An. W.R. 157 where a Division Bench of that High Court has held that Part II Rules relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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