# STATE OF ASSAM AND ANOTHER v. AJIT KUMAR SHARMA AA'D OTHERS

- **Citation:** [1965] 1 S.C.R. 890
- **Court:** Supreme Court of India
- **Decided:** 1962-09-25
- **Bench:** P. B. Gajendragadkar C.J, K. N. Wanchoo, M. Hidayatullah, RAGHt:BAR DAYAL, Ji/ R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-assam-and-another-v-ajit-kumar-sharma-aa-d-others-3275
- **Pages:** 10

## Headnote

Constitution of India, 1950, Art. 226-Administrativt i"'tructions by
State to private college-Carried out by Goi'rrning Body--Conditioru of
tervice of 1eacher1 affected-Right of teacher to maintain writ petition..
The respondent was a teacher in a private college affiliated to the Gauhati
University in Assam.
The colJege was receiving grants-in-aid from the
State on certain conditions set out in the form of Rules. One of the rules,
r. 7, provided that if a teacher stood for election to the Legislature, he
llhould be on compulsory leave without pay from the date of filing of nomination till the cod of the next academic session or, till the termination of
the term of the office to which he may be elected. The respondent applied
for leave for three months and contested for a scat in Parliament but was
defeated.
So, he applied for permission to rejoin. and the Governing
Body granted him the permission. The Director of Public Instruction, however, pointed out that such permission was in contra,enlion of the aforesaid rule, and therefore, the Governing Rody informed the respondent
that he had been granted compulsory leave without pay till the end of the
academic session.
The respondent thereupon filed a petition in the High
Coun for the issue of a wrir of 1nandan1us or other appropriate direction
on the grounds that: (i) the rule had no legal force. (ii) the rule did
not bind the Governing Body or the respondent and (iii) the order of the
Governing Body putting him on compulsor1 leave was incf{l:ctive.
He
also prayed that the State should be d1Tected not tu withhold the grant-inaid to the college if the Governing Body did not impose ..:orupulsory leave
on him. The Governing Body was also made a party to the petition. The
High Court held that the rules had no statutory force. and issued a direction
to the Director, as a public authority, to refrain from giving effect to
such rules. The High Court also issued a similar direction to the Governin&
Body, on the ground that it had not applied its independent mind to
the question of respondent's leave.
The State appealed to the Supremo
Court, but did not dispute that the Rules were only administrative instructions.
HELD : The order of the High Court issuing a writ to the State throu&JI
its Director should be set aside. [899 BJ
The rules being mere administrative instructions have not the force of
law as statutory rules.
They therefore confer no right on the teache" of
private colleges which would entitle them to maintain a writ petition under
Art. 226, for the enforcement or non-enforcement of any provision of thft
rules.
They being mere administrative instructions, are matters between
private colleges and the Government in the matter of grants-in-aid to such
colleges, and no teacher of any college has any right under the rules to ask
either for their enforcement or non-enforcement. It is open to the Go,·eming Body not to carry oul any such instructions and it 'o'1ill then be open
to the State to consider what grant to make.
But if the Governing Body
chooses to carry out the instructions it could not be said that the instruction was carried out under any threat; and, it is not open to a teacher
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STATE v. AJIT KUMAR (Wanchoo 1.)
891
A
to insist that the Governing Body should not carry out the instruction. (897
B-H)
B
Messrs Raman and Raman v. The State of Madras, [1959) Supp. 2. S.C.R.
227, referred to.
CIVIL APPELLATE JuRISD!CT!ON: Civil Appeal No. 1062 of
1963.
Appeal by special leave from the judgment and order dated
September 25, 1962, of the Assam High Court in Civil Rule
No. 221 of 1962.
G. S. Pathak and Naunit Lal, for the appellants.
C
M. K. Ramamurthy, for respondent No. 1.

## Text

STATE OF ASSAM AND ANOTHER
v.
AJIT KUMAR SHARMA AA'D OTHERS
Or;tober 27, 1964
(P. B. GAJENDRAGADKAR C.J., K. N. WANCHOO,
M. HIDAYATULLAH, RAGHt:BAR DAYAL AND
JI/ R. MUDHOLKAR JJ.)
Constitution of India, 1950, Art. 226-Administrativt i"'tructions by
State to private college-Carried out by Goi'rrning Body--Conditioru of
tervice of 1eacher1 affected-Right of teacher to maintain writ petition..
The respondent was a teacher in a private college affiliated to the Gauhati
University in Assam.
The colJege was receiving grants-in-aid from the
State on certain conditions set out in the form of Rules. One of the rules,
r. 7, provided that if a teacher stood for election to the Legislature, he
llhould be on compulsory leave without pay from the date of filing of nomination till the cod of the next academic session or, till the termination of
the term of the office to which he may be elected. The respondent applied
for leave for three months and contested for a scat in Parliament but was
defeated.
So, he applied for permission to rejoin. and the Governing
Body granted him the permission. The Director of Public Instruction, however, pointed out that such permission was in contra,enlion of the aforesaid rule, and therefore, the Governing Rody informed the respondent
that he had been granted compulsory leave without pay till the end of the
academic session.
The respondent thereupon filed a petition in the High
Coun for the issue of a wrir of 1nandan1us or other appropriate direction
on the grounds that: (i) the rule had no legal force. (ii) the rule did
not bind the Governing Body or the respondent and (iii) the order of the
Governing Body putting him on compulsor1 leave was incf{l:ctive.
He
also prayed that the State should be d1Tected not tu withhold the grant-inaid to the college if the Governing Body did not impose ..:orupulsory leave
on him. The Governing Body was also made a party to the petition. The
High Court held that the rules had no statutory force. and issued a direction
to the Director, as a public authority, to refrain from giving effect to
such rules. The High Court also issued a similar direction to the Governin&
Body, on the ground that it had not applied its independent mind to
the question of respondent's leave.
The State appealed to the Supremo
Court, but did not dispute that the Rules were only administrative instructions.
HELD : The order of the High Court issuing a writ to the State throu&JI
its Director should be set aside. [899 BJ
The rules being mere administrative instructions have not the force of
law as statutory rules.
They therefore confer no right on the teache" of
private colleges which would entitle them to maintain a writ petition under
Art. 226, for the enforcement or non-enforcement of any provision of thft
rules.
They being mere administrative instructions, are matters between
private colleges and the Government in the matter of grants-in-aid to such
colleges, and no teacher of any college has any right under the rules to ask
either for their enforcement or non-enforcement. It is open to the Go,·eming Body not to carry oul any such instructions and it 'o'1ill then be open
to the State to consider what grant to make.
But if the Governing Body
chooses to carry out the instructions it could not be said that the instruction was carried out under any threat; and, it is not open to a teacher
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STATE v. AJIT KUMAR (Wanchoo 1.)
891
A
to insist that the Governing Body should not carry out the instruction. (897
B-H)
B
Messrs Raman and Raman v. The State of Madras, [1959) Supp. 2. S.C.R.
227, referred to.
CIVIL APPELLATE JuRISD!CT!ON: Civil Appeal No. 1062 of
1963.
Appeal by special leave from the judgment and order dated
September 25, 1962, of the Assam High Court in Civil Rule
No. 221 of 1962.
G. S. Pathak and Naunit Lal, for the appellants.
C
M. K. Ramamurthy, for respondent No. 1.
The Judgment of the Court was delivered by
Wanchoo J.
This is an appeal by special leave against the
judgment of the Assam High Court.
Shri Ajit Kumar Sharma
(hereinafter referred to as the respondent) is a teacher in the
D
Handique Girls College (hereinafter referred to as the College) at
Gauhati.
He filed a writ petition in the High Court on the following averments. This is a private college teaching up to B.A.
standard and affiliated to the Gauhati University established under
the Gauhati University Act, No. 16 of 1947, (hereinafter referred
to as the Act). The College is managed by a Governing Body
E
according to the provisions of the Statute for the management of
privnte colleges framed by the Gauhati University under s. 21 ( g)
of the Act.
Under s. 23 (h) of the Act, the Executive Council
mav f"ame Ordinances to nrovide for the emoluments and conditio~s of service of tea~hers ,of the University, including teachers in
private colleges.
The University has in pursuance of the powers
F
so conferred on it framed rules for the irrant of leave to teachers of
private colleges which are binding on th'e Governing Bodies of such
colleges, and had ~ctually been adopted by the Governing Body
of the College in July 1956 for its teachers.
Under these rules the
Governing Body of the College cannot compel a teacher to take
G leave without pay.
The College receives grant-in-aid from the State of Assam and
..
there are certain conditions for giving grant-in-rud.
These
conditions do not provide for withdrawal of the grant-in-aid
if a private college fails to put a teacher, who seeks election to a
legislative or local body, on compulsory leave without pay from
H
the date of the filing of nomination till the end of the next academic
session or till expiry of the term of the office to which the teacher
is elected.
892
SUPREME COIJRT
RHORTS
(1 %5) I S.C.R.
The respondent as already stated is a teacher in the College.
He applied for leave with pay from January 2. 1962 to March 5,
1962 in order to cont~st a seat for Parliament.
This leave was
granted to him by the Governing Body of the College by !csc>lutic·:1
l\o. I of March 9, 1962.
The respondent stood for e!ection and
was defeated. lfo thercunon applied that he be permitted to rejoin
his duues from March 6, 1962 and the Governing Body pc,·mit:d
him to do so by its resolution No. 2 dated March 9, 1962.
He
t;1creforc worked as such from March 6, 1962.
On March 20,
I 9GL., the Director of Public Instruction,
Assam
(here;nafter
referred to as the Director) wrote a letter to the Principal and
Secretary of the College with reference to the letter of March 10,
1962 from the College in which apparently the Director had been
infonned of the leave granted tu the respondent and certain other
teachers in connection with elections to Parliament and Assam
Legislative Assembly.
In this Jetter, the Director informed the
Col!cge that he was unable to approve the resolution of the Governing Body pcnnitting re<pondent and certain other teachers to
rejoin their duties "immediately". The letter pointed out that such
permission was in contravention of r. 7 of the Rules rr.g~ruing the
Conduct a:id Discipline of the Employees of Aided Educational
Inqitutions (hereinafter referred to as the Rules) and could not
therefore be approved.
The Director also added that the Rules
had been framed in 1960 after due consultation with the University and the Assam College Teachers' Association.
On receipt of
this letter. the Governing Body seems to have reconsidered the
matter of leave to the respondent, and passed a resolution on April
4, 1962.
TI1is letter along with another letter was considered by
A
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the Governing Body of the College. and it was resolved in view of
these letters that the resolution of March 9, 1962. permitting the
F
respondent to rejoin duties from March 6, 1962 could not be given
effect to.
It was further resolved that the respondent and some
other teachers be granted leave in accordance with the Rules. This
resolution of the Governing Body was conveyed to the respondent
by the _Principal of the College by letter dated April 5, 196? and
he was told that he had been granted compul.<ory leave without
pay till the end of the academic session h1 view of his standing for
election in the last general elections.
The respondent thereupon tiled the writ petition in the High
Court· out of which the present appeal has arisen.
His contention
was that the Rules to which the Director had made reference had
no statutory force and that he was entitled to leave under the Rules
framed by the Gauhati University, which bad been accepted by the
G
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STATE v. AJIT KUMAR (Wanchoo J.)
893
A College.
He also contended that the Rules not jlaving the force
of law did not affect the powers of the Governing Body of the
College in the matter of its functions.
Consequently the second
resolution of the Governing Body dated March 9, 1962 was proper
and correct and the respondent was properly allowed to rejoin
duty after the expiry of his leave on March 6, 1962.
The
B Director had no authority to interfere with the second resolution
of the Governing Body dated March 9, 1962 and that resolutions
of this character passed by a Governing Body did not require the
approval of the Director and would have effect by themselves. It
was further contended that as the leave rules which govern the
C College. did not give power to the Governing Body to put a
teacher· on compuisory leave without pay against his will and
consent, the resolution of the Governing Body dated April 4,
1962 by which the respondent was put on compulsory leave without pay was of no effect and in any case the Governing Body should
not have acted on the illegal direction of the Director.
Finally it
D was urged that the Governing Body acted as it did on a threat contained in the letter from the Additional Director dated March 19,
1962, in which it was said that the education department would
not provide furids for salaries and allowances for any employee
who had gone on leave in connection with elections in contravention of r. 7 of the Rules, and therefore the action of the Governing
E
Body was bad and in any case the Director had no right to threaten
the Governing Body in this way.
The respondent therefore
prayed for a writ in the nature of certiorari/prohibition/mandamus declaring r. 7 of the Rules as having no legal force and also as
having no binding character on the Governing Body or the responF
G
H
dent.
He further prayed that the resolution of the Governing
Body dated April 4, 1962 be declared ultra vires, void and ineffective in law, and the Director should be directed not to withhold the grant-in-aid to be given to the College on the failure of
the Governing Body to put the respondent on compulsory leave
without pay.
Befor ~ we consider the reply of the State, we would like to give
the genesis of the Rules.
It appears that in February 1959 the
State of Assam decided to gra,nt additional grant-in-aid to private
colleges to implement the recommendations of the
Universi~
Grants Commission regarding scales of pay and other emolumentsto the teacher of such. colleges. · Apparently these scales of pay
and other ·emoluments were advantageo:is to. the teachers and
meant an improvement on their pay and other emolutilents which
they were. getting from before.
It was further decided that such
894
SUPREME COURT REPORTS
[1965] l S.C.!L
grant-in-aid should be given to private colleges on condition that A
the college authorities agreed to abide by certain. rules regulating
the conditions of service of their employees.
Accordingly it was
decided to frame rules in consultation with the University and the
Assam College Teachers' Association.
Further the views of the
Governing Bodies of all private colleges were also invited on the
B
draft rules. · Among them, the Governing Body of the College
was also consulted and it resolved on August 6; 1960 that it agreed
. with the proposed rules contemplated by· the Government to be
framed as communicated to it. The Government also ascertained
the views o{ the Gauhati Universitj and the Assam College Teachers' Association and eventually the Rules were notified by notic
fication dated March 9, 1961, published on March 29, 1961.
Rule 7 of the Rules, which is material for our purposes. is in these
terms:-
·
. "An employee desiring to seek election to the Legisla- .
live Body or to hold office with any political organisation
or local bodies shall be on compulsory leave without pay
from the date of the filing of his nomination till the end
of the next academic session or till the termination of the
term of office to which he may be elected as the case
may be. · Such employee however shall not be allowed
to retain lien. on his post for a period exceeding five
years."
D
E
Th;: Rules therefore were framed in consultation with University
and the Assam College Teachers' Association, which presumably
represents the teachers ·of all private colleges.
The Governing
Bcdy af the College was also consulted and it accepted the
Rules to be promulgated.
In this Governing Body the members F
of the teaching staff of the College are well represented and it
wa~ after the concurrence of the University, the College Teachers' Association and the Governing Body of the College in
particular in which the teachers of the College were well represe1_1ted that the Rules were notified.
G
The case of the appellants was that considering the manner in
which the Rules were framed they were binding on the College as
well as on the teachers of the College and it was thereafter that the
Government gave ·the revised grants to the College. It seems
further that the case of the appellants was that the Rules had
statutory force in view of the amendment of the Act by Assam H
Act II of 1961 by which a proviso was added to s. 21 (g) of
the A•t whereby the Government was given power to make the
•
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STATE.V. AJIT KUMAR (Wanchoo /.)
895
A
necessary rules in consultation with the University in respect of
government colleges and government aided colleges.
There were
certain other objections by the appellants, to which it is unneces-
/
sary to refer.
The Governing Body of the College was also made a party to
the writ petition and submitted a written-statement. It supported
B
the stand taken by the State, and in particular pointed out that the
Governing Body in which the teaching staff of the College was well
represented had accepted the Rules before they were notified.
In
consequence the Government had been giving grant-in-aid to the
College in accordance with the recommendations of the University
C
Grants Commission by which the pay scales etc., of the teachers had
been improved and the teachers had been receiving the pay and
dearness allowance under this grant-in-aid.
No representation was
ever made by any member of the teaching staff when the Rules were
under consideration and were notified that he would not
be
bound by the Rules.
The teachers including the respondent having
D
accepted the pay and dearness allowance under the scheme of
the grant-in-aid given by the State on terms and conditions laid
down in the Rules, the respondent was estopped from challenging
the Rules which were in the interest of the College and education in
general.
The Governing Body in particular was bound by the
Rules having accepted them and the resolution of April 4, 1962
E was not passed on account of a.ny threat by the Director.
The main question that was argued before the High Court was
whether the Rules in question had statutory force. Alternatively, it
was argued that even if the Rules had no statutory force and were
mere executive instructions for the purpose of grant-in-aid, the
F High Court should not issue a writ against the State or the Director
interfering with suelt· administrative instructions issued by the Director. It was further urged that if the Rules were mere executive
instructions, which had been accepted by the Governing Body of
the College in which the teachers of the College were well represented, they would be in the nature . of contractual obligations
G which could not be enforced by the issue of a writ under Art. 226.
The High Court first considered the question whether the Rules
had statutory force and came to the conclusion that they could not
be said to be issued under the proviso to s. 21 (g) of the Act on
which reliance w~ placed and therefore did not have any statutory
force. But the High Court further held that even if the Rules h•d
H
no statutory force it was open to it to issue a mandamus under
Art. 226 to the Director, who is a public authority, to refrain from
giving effect to the Rules which had no statutory force. ' It
,., -
896
SUPREME COl:RT REPORTS
(1965) l S.C.R.
therefore made a direction to the Director not to give effect to his
Jetter of March 20, 1962.
Further it was urged before the High Court that the Governing
Body of the College was not a statutory body and therefore no writ
or direction could issue to it and the remedy of the respondent
was to go to the civil court to enforce his right (if any). The
High Court however held that the words of Art. 226 were wide
enough and did not confine its power to the issue of writs, directions or orders in the nature of mandamus; they gave power to
issue directions, orders or writs which the Court considered proper
in the circumstances of each case and such direction could he
issued for any purpose. The High Court therefore held that as the
Governing Body had not applied its independent mind to the question of leave, it could issue a direction to it also.
The High
Court however did not decide whether the Governing Rody was
a statutory body or not, and in the result directed the Governing
Body a!•;o not to give effect to the letter of the Director dated
March 20, 1962. Thereupon there was a prayer to th~ High
Court on behalf of the State and the Director for leave to appeal
to this Court, which was refused. Then the State and the Director
applied to this Court for special leave which was granted: and
tha! is how the matter has come up before us.
It may be mentioned that the Governing Body of the College has been made a
respondent in the appeal before us.
The main question which folls for decision in this appeal is
\\ hcther the High Court is right in issuing a writ of mandamus to
the State through the Director directing it not to give effect to
lh~ letter of March 20, 1962-. It has not been contended on
behJlf of the apnellants that the Rules have statutory force and
the arguments before us have been made on the basis that the
Rules have no statutory force and are mere executive instructions
given by the Government to private colleges as a condition for the
im~lcmentation of pay scales etc .. recommended by the University
Grants Commission for private colleges, these scales being
apparently higher than those existing from before. It seems to us
that the High Court was in error in granting a writ of mandamus
•gainst the State through the Director once it found that the Rules
had no 't~tutory force and were mere administrative instructions for
the purpose of giving grant-in-aid to private colleges. What grants
the iState 'hould make to private educational institutions and
-up"n what terms are matters for the State to decide.
Conditions of these ~rants may be prescribed by statutory rules; there is
h,,wever no law to prevent the State from prescribing the conditions
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STATE v. AJ!T KUMAR (Wanchoo !.)
897
A
of such grants by mere executive instructions which have not the
force of statutory rules. In the present case the Rules have been
framed in order to give revised grants to private colleges to
enable them to give higher scales of pay etc., to their teachers
in accordance with the recommendation of the University Grants
Commission.
The Rules have been held by the High Court to
B have no statutory fqrce, and that is not disputed before us.
In
these circumstances it is clear that the Rules are mere executive
instructions containing conditions on which. grants would
be
made to private colleges to implement the recommendations of the
University Grants Commission as to pay scales etc., of teachers of
C private colleges.
Where such conditions of grant-in-aid are laid
down by mere executive instructions, it is open to a private college
to accept those instructions or not to accept them.
If it decides
not to accept the instructions it will naturally not get the grant-inaid which is contingent on its accepting the conditions contained
in the instructions.
On the other hand, if the college accepts the
D conditions contained in the instructions, it receives the grant-in-aid.
If however having accepted the instructions containing the conditions and terms, the college docs not carry out the instructions, the
Government wiH naturally have the right to withhold the grant-inaid.
That is however a matter between the Government and the
private college concerned.
Such conditions and instructions as to
E grant-in-aid confer no right on the te?chers of the private colleges
and they cannot ask that either a particular instruction or condition
F
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· should be enforced or should not be enforced. It is only for the
Govern'ng Body of the College to decide whether to carry out any
direction contained in mere administrative instructions laying down
conditions for grant-in-aid. Further it.is open to the Governing
Body not to carry out any such instruction which is not based on
rules having statutory force, and it wiIJ then be naturally open to
the State to consider what grant to make.
But if the Governing
Body chooses to carry ~he instruction. it could hardly be said
that the instruction was bemg carried out under any threat.
It
is certainly not open to a teacher to insist that the Governing Body
should not carry out the instruction. The rules for the purpose of
grant-in-aid being-as in this case-merely executive instructions
confer no right of any kind on teachers and they cannot apply to
the High Court for a mandamus asking for the enforcement or nonenforcement of the rules, even if indirectly there may be some effect
on them because of the grant-in-aid being withheld in whole or in
part.
Such mere administrative instructions even though called
rules are only a matter between the Goveming Body and the State
898
SUPREME COURT REPORTS
[1965) l S.C.R.
through the Director and cannot in our opinion form the basis of
A
a petition for writ under Art. 226 by a teacher.
We may in this connection refer to Messrs. Raman and Raman
v. The State of Madras( 1 ) where this Court had to consider certain orders and directions issued under s. 43A of the Motor
Vehicles <Madras Amendment) Act, 1948.
The question arose
whether the orders issued under s. 43A had the status of law or
8
not.
This Court held that such orders did not have the status of
law regulating the rights of parties and must partake of the character of administrative orders.
It was further held that there
could be no right arising out of mere executive instructions, muchless a vested right, and if such instructions were changed pending c
any appeal, there would be no change in the law pending the appeal
so as to effect any vested right of a party.
That decision in our
opinion governs the present case also, for it has been found by
the High Court, and it is not disputed before us, that the Rules
ar~ mere administrative instructions and have ncit the force of
law as statutory rules.
They therefore confer no right on the D
teachers of private colleges which would entitle them to maintain a
writ petition under Art. 226 for the enforcement or non-enforcement of any provision of the Rules.
The Rules being mere
administrative instructions are matters between private colleges
and the Goverpmeat in the matter of grant-in-aid to such colleges,
and no teacher of a college has any right under the Rules to ask
E
either for their enforcement or for their non-enforcement.
We
are therefore of opinion that the High Court was in error when it
granted a writ against the State through the Director, by which
the Director was asked not to give effect to its letter dated March
20, 1962, against the Governing Body of the College.
Then we come to the question whether a writ could have been
issued against the Governing Body of the College.
We find
however that there is no appeal by the College against the order
of the High Court issuing a writ against it.
In these circumstances
F
we do not think that we c~n interfere with the order of the High
Court insofar as it is against the Governing Body of the College. At G
the same time we should like to make it clear that we shoilld not
be taken to have approved of the order of the High Court against
the. Governing Body of the College in circumstances like the present and that matter may have to be considered in a case where it
properly arises.
Before we leave this case we should like to add that it was stated H
on behalf of the State before us that even if the decision went in
(I) [19~9! Supp. 2 S.C.R. 227.
STATE v. AJIT KUMAR (Wanchoo I.)
899
A favour of the State, it would not enforce r. 7 insofar as the respondent is concerned, as the State was concerned merely with the clari-
'\
fication of the law on the subject.
In the result we allow the appeal and set aside the order of the
High Court granting a writ against the State through the Director.
B The State of Assam has agreed to pay counsel engaged amicus
curiae for respondent, Ajit Kumar Sharma.
We therefore pass
no order as to costs.
Appeal allowed.
T.2SU F. 5-1