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Dhata Intermediate College And Others v. Brahma Nand Singh And Others
Structured Summary of the Opinion (G.C. Mathur, J.)
Factual and Procedural Background
Respondent No. 1 was employed as Head Clerk at Dhata Intermediate College, Fatehpur. Following an inquiry into certain charges against him, the College Management found him guilty and passed an order of dismissal dated 14 August 1974. The Management sought the District Inspector of Schools' approval for dismissal; by order dated 21 October 1974 the District Inspector refused to grant approval. Despite this refusal, the Management maintained the dismissal order. The respondent filed a writ petition in this Court. A learned Single Judge allowed the writ petition and quashed the order of dismissal, relying on a Division Bench decision (Manager, Shanta Nand Swatantra Bharat Inter College v. Kamla Rai) and holding that the Inspector's refusal effectively set aside the dismissal. The College (appellant) appealed against that Single Judge judgment. This opinion is the appellate decision by G.C. Mathur, J., which allows the appeal, sets aside the Single Judge's order and dismisses the writ petition. The parties were directed to bear their own costs.
Legal Issues Presented
- Whether a court may grant a declaration to enforce a contract of personal service in the present case, applying the test summarized in U.P. State Warehousing Corporation v. Chandra Kiran Tyagi (i.e., whether the case falls within one of the specified categories permitting such relief).
- Whether the Managing Committee of the appellant College is a statutory body for the purposes of invoking statutory remedies.
- Whether Rule 143(1) of the U.P. Education Code (requiring prior approval of the Inspector before dismissal) is a statutory rule incorporated into the Regulations by Rule 2 of Chapter XVII and therefore enforceable as a statutory provision.
- If Rule 143(1) is statutory and the Managing Committee a statutory body, whether the dismissal was in violation of statutory provisions such that the dismissal could be quashed under the third category identified in Chandra Kiran Tyagi.
Arguments of the Parties
Appellant (College / Management)
- Contended that Rule 143(1) of the U.P. Education Code was not a statutory rule and therefore its breach did not render the dismissal void on statutory grounds.
- Maintained the dismissal notwithstanding the Inspector's refusal to approve, and implicitly challenged the Single Judge's reliance on Kamla Rai.
Respondent No. 1
- Relied on Rule 143(1) of the U.P. Education Code, which states that no Head Master/Principal/Teacher/Clerk with whom the prescribed agreement has not been executed may be dismissed without the prior approval of the Inspector/Inspectress.
- Argued that, because the Inspector refused approval and the Management did not appeal against that refusal, the dismissal stood set aside and the respondent was entitled to reinstatement.
- Argued (relying on a Full Bench decision, Vaish College v. Lakshmi Narain) that the Managing Committee was a statutory body, which, if accepted, would support treating Rule 143(1) as statutory by virtue of Regulations.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| U.P. State Warehousing Corporation v. Chandra Kiran Tyagi, 1969 2 SCC 838 | Sets out the limited circumstances in which a court may grant a declaration to enforce a contract of personal service (three categories). | The court applied the three-category test and held the present case did not fall within the first two categories and could only fall within the third category if (a) the dismissal was by a statutory authority and (b) the statutory authority violated a statutory provision. |
| Manager, Shanta Nand Swatantra Bharat Inter College v. Kamla Rai, 1972 A.L.J. 933 | Authority relied upon by the Single Judge to hold that the Inspector's refusal of approval resulted in automatic setting aside of the dismissal. | The Single Judge relied on this decision to quash the dismissal; the appellate court noted the Single Judge's reliance but analysed the statutory character of the rule relied upon instead of simply following Kamla Rai. |
| Vaish College (Society), Shamli v. Lakshmi Narain, A.I.R. 1974 Alld. 1 (Full Bench) | Used by respondent to argue that the Managing Committee of the College is a statutory body. | The court noted the respondent's reliance on this Full Bench decision but expressed reluctance to accept the contention uncritically in view of subsequent Supreme Court authority; nonetheless, the court proceeded on the assumption (for argument's sake) that the Managing Committee might be statutory. |
| Km. Regina v. St. Aloysius Higher Elementary School, 1972 4 SCC 188 | Supreme Court decision relevant to whether the Managing Committee is a statutory body (used by the appellate court to question the Full Bench's proposition). | The appellate court indicated it was not inclined to accept that the Managing Committee was a statutory body in view of this Supreme Court authority, although it proceeded on the contrary assumption for the purpose of argument. |
| Managing Committee of Krishak Higher Secondary School, Raisi v. Isbam Singh, 1966 A.L.J. 1116 | Held that the Educational Code became part of the Regulations, implying the rules had statutory force (as accepted by D.S. Mathur, J., in that decision). | The appellate court noted this earlier decision but contrasted it with the later Division Bench decision in Muslim Association, Kanpur v. Hamid Husain and ultimately rejected the proposition that Rule 143(1) was thereby made statutory. |
| Muslim Association, Kanpur v. Hamid Husain (Second Appeal No. 331 of 1970, decided 25 Feb 1972) | Division Bench decision observing that inclusion of Educational Code rules in Board regulations does not change their character from departmental instructions to statutory rules. | The appellate court relied on this reasoning to support its conclusion that Rule 143(1) remained an executive instruction and was not made statutory by Rule 2 of Chapter XVII. |
Court's Reasoning and Analysis
The court's analysis proceeded in a series of focused steps, applying the legal principles and authorities cited in the opinion:
-
The court began by reciting the limited power of courts to grant declarations enforcing personal service, referencing U.P. State Warehousing Corporation v. Chandra Kiran Tyagi and the three categories where such relief is permissible:
- where a public servant is dismissed in contravention of Article 311(2) of the Constitution;
- where reinstatement arises under industrial/labour law (Labour/Industrial Tribunals); and
- where a statutory body has acted in breach of a mandatory statutory obligation.
- The court addressed the third category: whether the dismissal was by a statutory authority and in violation of a statutory provision. This required two sub-questions: (a) whether the Managing Committee of the College is a statutory body; and (b) whether Rule 143(1) of the U.P. Education Code is a statutory rule forming part of the Regulations.
- On the nature of the Managing Committee, the court noted the respondent's reliance on a Full Bench (Vaish College), but observed the Supreme Court's decision in Km. Regina v. St. Aloysius gave reason to doubt that proposition. For completeness, the court proceeded on the hypothetical assumption that the Managing Committee might be statutory so that it could focus on the second sub-question.
-
On whether Rule 143(1) is statutory, the court examined the history of the Intermediate Education Act, 1921 and its 1958 Amendment which introduced Sections 16-A to 16-I and the power to make regulations. The court found:
- Rule 143(1) and the Educational Code were departmental/executive instructions framed before 1958 when the Act did not regulate terms and conditions of teachers or clerks; they were primarily to govern grant-in-aid and recognition conditions.
- Rule 2 of Chapter XVII of the Regulations (which states that the rules of the Educational Code shall apply to recognised institutions insofar as they are not inconsistent with the Regulations) was framed before the 1958 amendments and could only have referred to those Educational Code rules relevant to the Act's then-scope.
- Because Rule 143(1) related to terms and conditions of teachers and clerks (matters outside the Act's scope at the time those Regulations were made), Rule 2 did not and could not incorporate Rule 143(1) into the Regulations as a statutory provision.
- Because Rule 143(1) is not statutory, even assuming the Managing Committee to be a statutory body, the dismissal could not be characterized as an action by a statutory authority in violation of a statutory provision (the third category). Therefore, the factual-mandatory basis for quashing the dismissal under the third category did not exist.
- On that basis the court held the Single Judge erred in quashing the dismissal and ordering reinstatement. The appeal was allowed, the Single Judge's order set aside, and the writ petition dismissed.
Holding and Implications
Core Holding: The appeal is allowed; the order of the learned Single Judge is set aside and the writ petition filed by respondent No. 1 is DISMISSED.
Direct consequences:
- The Single Judge's decision quashing the dismissal and ordering reinstatement is reversed.
- The dismissal order passed by the appellant College is not quashed by this Court on the grounds relied upon by respondent No. 1.
- The parties were directed to bear their own costs in both the appeal and the writ petition.
Broader implications: The opinion does not state that it establishes a new legal precedent; rather, it applies existing principles (notably those from Chandra Kiran Tyagi) and concludes, on analysis of statutory and regulatory history, that Rule 143(1) remains an executive instruction and is not a statutory provision enforceable as such in this context.
G.C Mathur, J.:— This is an appeal against the judgment of a learned Single Judge allowing the writ petition filed by respondent No. 1 and quashing the order of dismissal passed against him.
2. Respondent No. 1 was Head Clerk in the Dhata Intermediate College, Fatehpur. The Management held an enquiry into certain charges against him and finding him guilty of the charges passed an order on August 14, 1974, dismissing him from service. The Management submitted its proposal to dismiss the respondent No. 1 from service to the District Inspector of Schools for his approval. By order dated October 21, 1974, the District Inspector of Schools refused to grant the approval. Inspite of the refusal of approval of the District Inspector of Schools, the Management maintained its order of dismissal against the respondent No. 1. He thereupon filed a writ petition in this Court. The appellant College is undoubtedly governed by the Intermediate Education Act, 1921. Though Section 16-G(3) of the Act provides that no Principal, Head Master or teacher may as discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments or served with notice of termination of service, except with the prior approval in writing of the District Inspector of Schools, there is no such provision in respect of clerks or Head Clerks. Chapter III of the Regulations which deal with the condition of service also does not provide for the approval of the Inspector of Schools before the termination of the service of a clerk or Head Clerk. The only provision on which the respondent No. 1 relied was Rule 143(1) of the U.P Education Code, the relevant portion of which reads thus:—
“143. (1) No Head Master/Principal/Teacher/Clerk, with whom the agreement to the prescribed form has not been executed, may be dismissed, removed, suspended or discharged from service, without the prior approval of Inspector/Inspectress.”
3. This rule certainly provides that a clerk shall not be dismissed from service, without the prior approval of the Inspector.
4. The learned Single Judge relying upon the decision of a Division Bench of this Court in Manager, Shanta Nand Swatantra Bharat Inter College v. Kamla Rai . 1972 A.L.J 933. held that once the approval was refused by the Inspector, the order of dismissal automatically stood set aside and since the management did not file any appeal against the order of the Inspector, the Inspector's order became final and the petitioner was entitled to be reinstated. The objection of the Management that Rule 143(1) was not statutory was also repelled by the learned Single Judge on the basis of Kamla Rai's case. The learned Single Judge, accordingly, allowed the writ petition and quashed the order of dismissal.
5. The powers of Courts to grant a declaration to enforce a contract of personal service is very limited. In U.P State Warehousing Corporation v. Chandra Kiran Tyagi . 1969 2 SCC 838 the Supreme Court has laid down that such a declaration can be granted only in the following cases:—
(i) where a public servant is dismissed from service in contravention of the provisions of Article 311(2) of the Constitution;
(ii) in cases of reinstatement of a dismissed workman under the Industrial Law by Labour or Industrial Tribunals; and
(iii) where a statutory body has acted in breach of a mandatory obligation, imposed by some statute.
6. The present case does not fall within the first two categories and can only fall within the third category, if the two conditions are satisfied, namely, that the dismissal order has been passed by a statutory authority and the statutory authority has acted in violation of some statutory provision.
7. On the strength of the decision of a Full Bench of this Court in Vaish College (Society), Shamli v. Lakshmi Narain . A.I.R 1974 Alld. 1. it was urged by the learned counsel for the respondent No. 1 that the Managing Committee of the appellant College was a statutory body. We are not inclined to agree with his contention in view of the decision of the Supreme Court in Km. Regina v. St. Aloysius Higher Elementary School . 1972 4 SCC 188. But we shall proceed on the basis that the Managing Committee of the appellant College is a statutory body. The question which then arises for consideration is whether Rule 143(1) is a statutory rule or not. There is no doubt that the provisions of the Education Code including 143(1) were mere executive instructions and were not statutory rules in the sense of having been made under the provisions of some statute. They were framed primarily to lay down conditions for recommendations of grant-in-aid to private institution. They also lay down terms and conditions upon which the recognised or aided instructions will employ teachers, etc. By themselves these rules do not confer any right upon the employee of a private institution to enforce them. It was urged that by virtue of Rule 2 of Chapter XVII of the Regulations framed under Intermediate Education Act the Rules in the U.P Education Code have become statutory rules. The heading of Chapter XVII is ‘Miscellaneous’. Rule 2 is in these words:—
“2. The rules of the Educational Code of Uttar Pradesh, shall apply to all institutions recognised by the Board in so far as they are inconsistant with these regulations.”
8. It is urged that by virtue of the Rule, Rule 143 of the Educational Code has become part of the Regulations and, therefore, has become a statutory rule. In Managing Committee of Krishak Higher Secondary School, Raisi v. Isbam Singh . 1966 A.L.J 1116., D.S Mathur, J. (as he then was) accepted this contention and held that the whole of the Educational Code shall be a part of the Regulations and disregard thereof shall amount to disregard of statutory provisions. This decision was not approved by a Division Bench of this Court in Muslim Association, Kanpur v. Hamid Husain (Second Appeal No. 331 of 1970, decided on February 25, 1972). The Division Bench observed that simply because a regulation framed by the Board provided that the rules of the Educational Code shall apply to the recognised institutions will not alter the character of the rules of the Education Code and that those rules will continue to be what they were namely, departmental instructions. This question has not been considered in the case of Kamla Rai, upon which the learned Single Judge has placed reliance.
9. We have examined this question ourselves and for the reasons to be indicated hereafter have come to the conclusion that Rule 2 of Chapter XVII of the Regulations does not make Rule 143(1) of the Educational Code applicable statutory. The Intermediate Education Act, 1921, before its amendment in 1958 did not deal, at all with the service conditions of either teachers or clerks. It was only concerned with the Constitution of the Board of High School and Intermediate Education, its powers and duties, etc. It contained no provision, whatever, in respect of teachers or other employees of the institutions which were to be governed by the Act. Chapter XVII including Rule 2 thereof was framed sometime before the amendment of 1958. The Intermediate Education (Amendment) Act, 1958, introduced Sections 16-A to 16-I in the Intermediate Education Act. These newly added sections made provisions in respect of the institutions which were governed by the Intermediate Education Act. Sections 16-A, 16-B and 16-C made provisions regarding the Scheme of Administration of the institution. Section 16-D provided for the inspection of recognized institutions, removal of defects and appointment of Authorized Controllers. Sections 16-E and 16-F made provisions for appointment of Principals, Head Masters and Teachers of recognized institutions. Section 16-G provided for the condition of service of teachers. Section 16-H made certain exceptions from the above mentioned provisions and Section 16-I provided for delegation of powers. Thus, for the first time, the provisions regarding appointment of Principals, Head Masters and Teachers and for their terms and conditions were introduced in the Act in the year 1958. Section 8 of the Amendment Act made transitory provisions regarding the making of regulations. Sub-section (1) of this section reads:—
“8(1) Notwithstanding anything in the Principal Act, it shall be lawful for the State Government to make, within one year from the commencement of this Act, Regulations in respect of matters covered by Section 16-A to 16-1 and every Regulation so made by the State Government shall continue to remain in force until it is superseded by anything done or action taken under the Principal Act as amended by this Act.”
10. Under this power the State Government framed regulations which are contained in Chapters I, II and III of the Regulations. Of these Chapter III contains regulations made under Section 16-G relating to conditions of service. This does not contain any provision regarding the termination of services of clerks, etc., but deals only with the termination of services of Principals, Head Masters and Teachers only.
11. It has already been said above that Chapter XVII including Rule 2 thereof was framed by the Board sometime before 1958 when the Act did not, at all, deal with the teachers or other employees of recognised institutions. The power to make regulations was conferred upon the Board by Section 15, which provided that the Board may make regulations for the purpose of carrying into effect the provisions of this Act. Since the provisions of the Act were not concerned with the teachers and other employees of the recognised institutions, no power was conferred on the Board to make regulations in this respect. The regulations made by the Board before the Amending Act, 1958 could not and did not relate to the term and conditions of teachers and other employees like clerks and Head Clerks. Therefore, Rule 2 of Chapter XVII when it stated that the rules of the Educational Code shall apply to all recognised institutions referred only to such, rules as related to the provisions then contained in the Intermediate Education Act. It did not and could not refer to Rule 143(1), which related to terms and conditions of teachers and clerks, as this matter was outside the scope of the Act and of the regulations at the time when these regulations were made. For this reason we are of opinion that Rule 2 of Chapter XVII of the Regulations did not incorporate by reference Rule 143(1) of the Education Code in the Regulations themselves and did not make it statutory. Rule 143(1) of the Education Code remains an executive instruction and cannot be given the status of a statutory rule. The entire case of respondent No. 1 is based upon the violation of Rule 143(1) of the Education Code. Since this rule is not statutory, even if we consider that the Managing Committee of the College is a statutory body, it cannot be said that the order of dismissal against the respondent No. 1 has been passed by a statutory body in violation of statutory rules. The case of respondent No. 1 is, therefore, not covered by third category of cases referred to by the Supreme Court. That being so, the order of dismissal passed by the appellant College against the respondent No. 1 cannot be quashed by this Court.
12. The appeal is, accordingly, allowed, the order of the learned Single Judge is set aside and the writ petition filed by the respondent No. 1 is dismissed. The parties will bear their own costs of this appeal as well as of the writ petition.
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