# REGINA v. ST. ALOYSWS WGHER ELEMENTARY SCHOOL & ANR - **Citation:** [1971] Supp. 1 S.C.R. 6 - **Court:** Supreme Court of India - **Decided:** 1971-03-16 - **Bench:** J. M. Shelat, C. A. V Aidialingam - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/regina-v-st-aloysws-wgher-elementary-school-anr-5397 - **Pages:** 14 ## Headnote Madras Elementary EducaJjon Act (8 of 1920), s. S6(2) (h) and Part U Rules-If statutory Rules or administrative instructions-Purpose of Rules -Right oJ. teacher against management oJ Elementary School-If governed by contract or Rules. The appellant, who was working as the Headmistress in the respondent school was reduced to the position of an Assistant Teacher. Her appeal to the District Educational Officer under r. 13(2)(vi) of Part II of tho rules ·published by tho State Government in the Gazette on August 29, 1939, was rejected, but on a further appeal by her to the Divisional Inspector of Schools, the management of the school was directed to restore her to the position of Headmistress. As the management did not do so, sho filed • suit for the issue of a mandatory injunction to tho respondent and for damages. On the question whether the rules under which the appeal was filed and the order was made wore only administrative instructions by the Gov· eroment 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 aaalnst tho management, HELD: (I) Section S6 of the Madras Elementary Education Act, 1920, authorised tho Government to make rules to 'carry out all or any of tho purposos of this Act', and under sub ... 2(h) for declaring the conditions subject to whicb schools may be admitted to recognition or aid, and rules were framed in 1922. The Act was amended by Amendment Act of 1939, by which Chs. II, N, VI and s. SS wore deleted. Tho existing rules therefore could not be continued as they could not be regarded as rules for 'car· rying out the purposes of the Act.' Hence they were reframod 'llld published in the Gazette in 1939 in two parts. [13F, H; 14D]. (a) The lint part contained rules dealing with matters provided for in the various sections. The rules in Part II could not refer to any section because, they related to matters such as recognition and aid dealt with in sections and Chapters which were repealed by the 1939-amelldrnent, and hoacc, Part II rules did not set out or refer to any section of the Act. [l 4B]. G (b) The rules in Part I were headed 'Rules framed Uildcr the Madras H Elementary Education Act, 1920', but the Rules in Part II were not given any such hcadjna or title. [14F). (c) There was no previous publication of the rules in Part II as required by s. S6(1). [14F-G]. (d) The rules in Part II could not be claimed to have been made under s. S6(2) {b) dealing with the conditions subject to which schools may be admitted to rocognition. or aid, because they did not satisfy tho condition proccdcnt for auch rule·mal declaring the conditions subject to which schools may be admitted to recognition or aid." 9 A B c D E F G H 10 A B c D E p G H SUPREME COURT REPORTS [1971) SUPP. s.c.11:. 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 gra.ntsin-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; wa.s retained. It alsc appears that even after Act 2 of 1939 which repealed Ch. IV was enacted, rules relating to the power of the Educational authorities were re-published on August 29, 1949, and Part II of the Rules dea.lt with matters realating to recognition of schools and grant-in-aid. In the view of the High Court, after repeal of ss. 41 & 42 of the Act, those rules could only have effect as execu· tive instructions. On this question it appears that tliere has been some difference of opinion in the High Courts. A Full Bench of the Kerala High Court in Chandrasekharan Nair and others v. Secretary to Govt. of Kera/a and others,(') apjlroving their earlier judgment in Joseph Valamangalam v. State of Kera/a(') held that the rules contained in Part II headed "Rules for grant of recognition and aid to Elementary Schools" framed under the Madra.s Elementary Education Act, 1920, were mere e'l:ecutive directions having no statutory authority. The High Court of Andhra Pradesh in Jalli Venkatswarrry v. The Correspondent, Kasturiba Gandhi Basic Senior School, Kenetipuram(') was apparently of the view that these rules had statutory operation. The High Court of Madras in A. Ramaswami Ayyangar v. State of Madras (Education Department)(') held that the rules were administrative and not sta.tutory in tlieir effect, and the management could dispense with the services of its employee (a teacher) after giving three months' notiee in the usual course, without assigning any special reason, and the employee could not invoke the aid of the Court for oo order to quash the proceedings of the management dispensing with his services on the ground of non-compliance with those rules. (1) A.!. R. 1961 Kerala 303. (3) A.(. R. 1961 A. P. !78. (2) A. I. R. 1958 Kerala 290. (4) A. I. R. 1962 Mad. 387. K:UMARI REGINA •• ST. A.H. E. SCHOOL (She/at, J.) In this case, the question whether an order made by the Educational authorities in exercise of the powers conferred upon them by rules is liable to be enforced by action in a civil court at the instance of a. person affected by the action of the school authorities falls to be determined. It is unfortunate that counsel have not been able to place before us the Act, and the rules in force at th~ material time. Counsel appearing at the Bar a.re also unable to inform us about the authority in the exercise of which the rules were originally framed and were re-issued after the repeal of Ch. IV of the Act. Before we can decide this appeal, we must have 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 man::ier 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 Sta.le under the States Reorganization Act, 1956. 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 Tria.! Court may, if so advised, issue a summons to the Educational a.uthorities 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. The judgment of the Court after receipt of the report was delivered by Shelat, 1.- Prior to June I, 1955, the appellant was working as the Head · Mistress in the respondent school. On April 22, 1955, the management of the School served certain charges on her and called upon her to reply to the same. Her reply was found to be unsatisfactory, and thereupon, by an order passed by the m01nagement on June 1, 1955 she was reduced to the position of an Assistant Teacher. She thereafter filed an appeal against the management before the District Educational Officer, South Kanara.. Her appeal was rejected. A further appeal by her before the Divisional Inspector of Schools, Coimbatore, succeeded and the Divisional Inspector directed the mana!!JCment to restore her to her original position as the Head Mistress. The management declined to do so and she filed the suit from which this appea.l arises. 11 A B c D • G H 12 A B c D E F' G H SUPREME COURT REPORTS [1971] SUPP. S.C,R. The suit was on the basis that since the school had obtained recognition and grant-in-aid under the Madras Elementary Education Act, VIII of 1920, and the rules made therefore by the Government, it was under the supervision, first of the Education Department of the Madras Government, and after reorganisation. of States, that of the Mysore Government. According to her, the Act and the said rules were binding on the school and ga.ve her a right to enforce against the management the said order of the Divisional Inspector. The order reducing her to the position of an assistant teacher stood vacaited by the order of the Divisio· nal Inspector and the respondent school, therefore, was bound to comply with that order and restore her to the position of the Head Mistress. The management contested the suit, maintaining tha.t the order of reduction passed by it was within its power, that there was nothing in the Act or the rules which warranteil any interfere~ce with its right of internal management of the school and g'we no right to the appellant to enforce in a court of law the order passed by the Divisional Inspector, that order being only a matter between the Education Department and the management The Trial Court accepted the school's contention and dismis· sed the suit. In a·n appeal against that dismissal, the District Judge took a different view and held that the order of the Department was legally enforceable by the appellant since it was passed in Hn appeal provided by the s~.id rules. He set aside the dismissal uf the suit and passed a decree in favour of the appellant. On a second appeal by the school, the High Court went into tjie legisla· tiv~ history of the Act and on a·n examination of the rules accep· ted the contention of the management that the relationship bet· ween the parties was that of master and servant and no manda· tory injunction could be issued directing restora,tion of the appellant as the Head Mistress as that would be tantamount to specific performance of a contract of personal service not pennis· sible under s. 21(b) of Specific Relief Act, 1877. The High Court .ilso held that the rules, under which the a·ppellant 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 agrieved against its management. Against this judgment, the appellant obtained specia·I leave from this Court and filed this appeal. The appeal first came up for hearing in March 1970 before Shah, J. (as he then was) and Grover, J. Not satisfied with the' record before them, the learned Judges postponed the hearing of the appeal and ca.Jled for a report from the Trial Court on certain matters found wanting in the record. In accordance with that urder, the Trial Court took additional evidence, both oral and .. KUMAR! REGINA v. ST. A.H. t. SCHOOL (She/at, J.) docUillentary, and despatched its. report along with a copy of the rules, the Madras Gazette in which they were published and 'ertain other materials. From those materials. as also from the judgment of the Kerala High Court reported in Rev. Fr. Joseph v. Kera/a(') it is possible to trace the charges which the Act and the rules have undergone from time to time. Such a legislative history of the Act is important to a certain extent as it throws light on me character of the rules and the power under which they were framed from time to time. Counsel for the appellant urged that in spite of the changes made from time to time in the Act, the rules with which we are concerned in this appeal have retained their original character of being statutory rules. They must, therefore, be held to have been made under s. 56 and particularly under cl. (h) of its sub-s. (2), which empowers the Government to make rules in respect of recognition as a,n elementary school and the aid which the Government gives to it from public funds. The argument was that despite the changes in the Act, particularly the deletion of certain provsions of the Act, to which we shall presently come, the definition ot an 'elementary school' in the Act takes in schools recognised by the Director of Public Instruction of the State Government, and since such a recognised school is the essence of the scheme of elementa.ry education provided by the Act, the rules have to be \Teated as statutory rules made under cl. (h) of s. 56(2) which is still retained in the Act. Before we proceed to consider these contentions, it is necessary to examine briefly the Act and its legislative history. The Act was first passed as Madra~ Act, VIII of 1920, and then contained seven chapters with 56 sections. It underwent several changes from time to time and particularly when the Madias Elementary Education (Amendment) Act, II of 1939 was passed by which Chapter II, IV, VI and s. 55 in Ch. VII were deleted. The Act was passed with the ob1ect ot making better provisions for elementary education and envisaged imparting of such education through elementary schools, including those run by private ma.nagements, but recognised by Government through its Education Department. Sec. 3(vi) of the Act defines such an elementary school ~ one recognised by the Director of Public· Instruction or by such authority as may be empowered by him in that behalf. Sec. 56 "uthorised the Government to make rules not inconsistent with the provisions of the Act "to carry out a.II or any of the purposes (I) A. I. R. 1958 Kerala 290. 13 A c D E F G H 14 A B c D E F G H SUPlll!JIE COURT .REPORTS [1971] SUPP. s.c.R. of this Act", and in particular cl. (h) of sub-s. (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 ss. 41 to 43 in it, dealt with recognition of schools a.nd admission of private managed schools to grant-in-aid. These chapters, as stated earlier, were repealed in 1939. The Rules were first framed in 1922 under s. 56 and contained provisions regarding recognition and aid. These Rules were clearly statutory rules. Curiously, although Chs. II and IV were deleted in 1939, cl. (h) of s. 56(2) was allowed to remain in the Act. It appears that the rules regulating recognition and aid were framed in 1922 because so long as Chs. II and IV were in the Sta-tute, they had to be made to implement the purposes set out in those chapters. But with the repeal of those chapters, those Rules could not be continued as they could no longer be regarded as rules for carrying out the purposes of the Act as s. 56(1) enjoins The Madras Government appears to have appreciated such a result arising from the repeal of those chapters and therefore, reframed the rules and published them in the Gazette of August 29, 1939. The new Rules were divided into two parts. The first part contained rules dealing with matters provided for in ss. 3(i)(v) and (viii), s. 36(1) and (2), s. 44, s. 48, s. 50(iii) and (v) ands. 51. Part II Rules did not set out or refer to any of the sections in the Act as Part I Rules did. The reason was that rules in Part JI dealt with recognition and aid in respect of which there were, after the 1939 amendment, no corresponding provisions in the Act. It is also of some significance that when published in 1939 the rules in Part I were headed "Rules frame:! under the Madras Elementary Eduction Act, 1920", while the rules contained separately in Part II were not given any such heading or title. Further, it appears that when these Part II Rules were published in August 1939 there was no previous publication of them as required by s. 56(1) of the Act. Ch. I in Part II Rules deals with recognition. The power to grant or withdraw such a recognition is conferred on the officers of the Education Department. Under r. 5, applications for recognition of schools or additional standards in such schools are to be made to the District Educational Officer. An appeal is provided against his decision before the Divisiona~ Officer. The rules then Jay down certain requirements on the basis 0f which recognition would be given or withheld. Rule 13(1) r,irovides, inter a/ia, for the maintenance of a teacher's service register by the manager of the school specifying therein the terms of service under which a teacher is recruited. The register would include ' ' " KUMAlll llEGINA v. ST. A. H. E. SCHOOL (Sh~/at, J.) 15 particulars showing whether a teacher is appointed temporarily or on probation or on a permanent basis, his salary, the scale of pay, if any, etc. Under the rule, the manager has to get the register countersigned by the Deputy Inspector of Schools. The rule further provides that no qualified teacher ca.n 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. Cl. (2) of r. 13 provides that no teacher ca11 leave the service of a school without giving three months' notice, or three months' salary in lieu thereof. Under sub-cl. (ii) of cl. (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-cl. (ii), e.g., for wilful neglect of duty, serious misconduct, gross insubordination, incompetence etc. The first provision to sub-cl. (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 heard has to be given to him. The second proviso to that subclause requires the management to consult the Deputy Inspector and obtain his approval about the propriety of the actioo proposed against a teacher. The rule then provides : "When, on a teacher's appeal, the District Educational Officer orders reinstatement, the management shall forthwith reinstate him within 10 days of the receipt of the orders, notwithstanding a further appeal submitted or proposed to be submitted by the management to the Divisional Inspector and shall inform in writing the Deputy Inspector of Schools and the District Educational Officer of the fact of having done so. Failure to comply with such orders of the District Educational Officer may entail action against the management under rule 14 below." Sub-cl. (vi) of r. 13(2) provides for appeals, first, before the District Educational Officer, and then, before the Divisional Inspector of Schools. Under r. 14, the Director of Public Instructions has the power to declare, after enquiry, a teacher to be unfit for employment in a recognised school. Under r. 14-A, he ca,n refuse or withdraw recognition from a school in which is employed a teacher whom he has declared to be unfit, or when the school is under the management of a person declared unfit by him. Recognition can also be withdrawn under rr. 26 to 28. 28-A and 28-B on the grounds set out therein. Ch. II of Part II Rules contain rules in regard to aid, such as teaching grants, maintenance grant etc., B c D E F G H 16 B c D E F G H SUPREME COURT REPORTS [1971] SUPP. s.c.R. and Ch. III contains rules with regard to grants for school buildings, building sites and play-grounds. Chs. II and IV of the Act, which contained provisions for recognition and aid, having been repealed, these rules, reissued and published afresh in August 1939, cannot be said to be rules "to carry out all or any of the purposes of this Act", as provided by s. 56(1). No doubt, cl. (h) of sub-s. (:2) of s. 56 was still retained even after Chs. II and IV were deleted, and therefore, the Government could perhaps claim to ha.ve the power to frame statutory rules "declaring the condihOns subject to which schools may be admitted to recognition or aid". But even if the Government were to claim to have framed rules under the sanction contained in cl. (h) of s. 56(2), such rules would not satisfy the condition precedent for such rule-making, namely, that they ca.n 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 s. 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 s. 56. If they were cla·imed · to have been so made, they would, firstly, have been pre-published as required by s. 56(1), and secondly, the Government wouM not have made the distinction oetween 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 fa.els support the contenion of the respondent-school that Part II Rules cannot be said to be statutory rules framed under s. 56, although the power to make such rules is still retained with the Government by reason of cl. (h) being still there in s. 56(2). 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 Jaw of master and servant in the absence of any statute controlling or abrogating such a contract of employment and providing to the contrary. The mere fact that such a school has obtained recognition and aid from the educa.tion department would not mean that the relationship between its management and its employees has ceased to be governed by the contra.els of employment under which the employees are recruited and by the law of master and servant unless there is some provision in the Act overriding that law as one finds in statutes dealing with industrial disputes a.nd similar other matters. There· is in fact no such provision in the Act and none was pointed out to us. The result is that the relations between the management and the teachers even in a recognised elementary school have to be regarded as being governed by the contracts of employment KUMAR! REGINA'· ST. A. ff, E. SCllOOL (She/at, J.) and the terms and conditions contained therein. Part II Rules, 'Yhich cannot be regarded as having the slatus of statutory rules made under s. 56, cannot be said to have the effect of controlling the relations between the management of a school and its teachers or the terms and conditions of employment of such teachers or abrogating the law of master and servant which ordinarily would govern those relations. But it cannot also be ga.insaid that as the Government has the power, to admit schools to recognition and grants-in-aid, it can, de hors the Act, lay down conditions under which it would grant recognition and aid. To achieve uniformity and certainty in the exercise of such executive power a.nd to avoid discrimination, the Government would have to frame rules which, however, would be in the form of administrative instructions to its officers dealing with the matters of recognition and aid. If such rules were to lay down conditions, the Government can insist that satisfaction of such conditions would be condition precedent to obtaining recognition ood aid and that a breach or non-compliance of such conditions would entail either the denial or withdrawal of recognition and aid. The management of school, therefore, would commit a breach or non-compliance of the conditions laid down m the rules on pain of dcpriv&tion of recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce those rules upon the management. But the enforcement of such rules is a matter 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 lie•1 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, viz .• an aggrieved employee of a school, a.ny remedy enforceable at law in the event of the management of an elementary school refusing to comply with these. 2-1 S, C. lndia/71 A B c D E F G H 18 A B c D E G H SUPREME COURT REPORTS (1971) SUPP. S.C.R. rules which, inter alia, enjoin upon a school to abide by the directions given thereunder by the education officers of the Government named therein. In the absence of any prov1s1on in the Act governing the relations between the ma.nagement and a teacher employed by it or controlling the terms of employment of such a teacher and Part II Rules not being statutory rules, the appellant coufd not be said to have had a cause of action for enforcing the directions given by the Divisional Inspector to restore her as the Head Mistress in the appeal filed by her. Appeals against orders pa.ssed by the management against a teacher ace provided for under r. 13 so as to enforce the satisfaction of conditions under which recognition and aid would be granted or withdra.wn, and not for regulating, as between the teacher and the management, the relations of master and serva.nt arising under the contract of employment. In Rev. Fr. Joseph v. Kera/a,(') the Kerala High Court had to consider the question of these rules being statutory or not as one of the schools, whose writ petition among others it was trying, was governed by the Madra.s Elementary Education Act, 1920 and the rules made by the Madras Government. After tracing the legislative history of the Act, as also of the rules, the High Court held that Pact II Rules did not have any statutory origin and were, therefore, only administrative instructions by the Government to its educational officers, and therefore, did nof vest in the school any statutory right for grant-in-a.id. This decision was later approved by a full bench of that High Court in Chandrasekharan Nair v. Secretary to Government of Kerala(') where that Court once again held fhat Part II Rules were administrative rules. Similarly, in A. Ramaswami· Ayyangar v. Madras,(') the High Court of Madras negatived the contention fhat these rules, dealmg with recognition aind aid, could be invoked by an employee against the management of a private elementary school to enforce a right allegedly arising under the rules. The High Court held that the rules were not staitutory rules, and that therefore, they could not enlarge the scope of fhe contract of employment between such an employee of the school and the management embodied in the school register, and that the rules affected the relations between the school and fhe Government, and not a fhird party. In Govindaswami v. Andhra,(') a learned Single Judge of the Andhra High Court. took the view fhat fhe powers and functions of the State's educational officers under these rules in relaition to recognition a ad aid were quasi judicial and held that fhese rules were statutory (!) A. I. R. 19S8 Kerala 290. (3) 1962(1) M. L. 1. 269. (2) A. J. R. 1961 Kerala 303. (4) 1962(1) An. W.R. 263. KU.MARI R~O!NA v. sr. A.H. B. SCHOOL (She/at, J.) 19 A rules. But this view was on an assumption that even Part II Rules were made under s. 56(2)(h) of the Act. Such an assumption , " was made without any enquiry whether they were so made and without taldng into account the fact of the deletion of Chs. 11 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(') where a Division Bench of that High Court has held that Part II Rules relating to recog· nition and aid are not statutory rules but are only executive instructions, a.nd therefore, are not legally enforceable in a court of law. On the reasons aforesaid. the suit filed by the appellant must be held to be misconceived, and consequently, the High Court righty dismissed her suit. The appeal fails and is dismissed. But in the circumstances of the case, we decline to make any order B c as to costs. D V. P. S. Appeal dismissed. (I) !970(II) An. W. R. 157.