JUDGMENT V.R. Krishna Iyer, J. 1. While in a normal, natural state of affairs retirement for a man, from service long past the middle age, should be a welcome change, people cling on even to humble posts, after the conventional age of superannuation, when economic insecurity confronts them even at that stage. This is the human side of the story of the petitioner who is but one among many seeking, through Court and otherwise, to postpone the date of compulsory retirement from service. 2. The petitioner, a teacher retired from Government service on 31-3-1965, and thanks, presumably, to domestic economic compulsions, - sought service under the 3rd respondent whose school had just been started. Taking advantage of the ripe experience of the petitioner the 3rd respondent appointed him as Headmaster by order dated 30-5-1966 (Ext. P1). Although in the ordinary scheme of things the age of retirement in Government service and private school service - which latter is governed by the Kerala Education Act and Rules framed thereunder, - is the same, Ext. P.2 , an order issued by the Government on 6-5-1966, permitted trained teachers who had retired from government or private schools but had not passed the age of 59 on Ist June 1966, to be employed as teachers in aided schools for the school year 1966-67 with provision to continue them under certain limited circumstances. This enabling order of government, issued under Chap.21 R.2 sub-r.(2) of the Kerala Education R.1959, empowered the manager, 3rd respondent, to employ the petitioner by his order, Ext. P.1. Subsequently, a departmental decision was taken to put an end to the employment of overaged teachers and when the educational officers sought to implement this decision by issuing directions to aided schools, writ petitions were filed challenging the validity of such directions. They ended successfully, in a sense, as is apparent from the ruling reported in Ramakrishna Menon v. State of Kerala ( 1969 KLJ 319 ). In the meanwhile, Chap.21 R.2(2), already referred to, was deleted by an amendment of the Kerala Education Rules, published in the Kerala Gazette dated 10-12-1968. Oblivious of this deletion, Ext. P.3 order was issued by the government on 19-3-1969 "In exercise of the powers conferred by sub-r.(2) of R.2 of Chap.21 Kerala Education Rules" withdrawing, with effect from 31st March 1969, the earlier notification Ext. P.2. Acting on Ext. P.3. Oblivious of this deletion, Ext. P.3 order was issued by the government on 19-3-1969 "In exercise of the powers conferred by sub-r.(2) of R.2 of Chap.21 Kerala Education Rules" withdrawing, with effect from 31st March 1969, the earlier notification Ext. P.2. Acting on Ext. P.3. duly communicated to the 3rd respondent by the 2nd respondent, the Assistant Educational Officer, Parur, the petitioner was jettisoned from service by the manager whereupon the present writ petition was filed challenging the validity of Ext. P.3 and the consequential or, at any rate, subsequent section taken by the 3rd respondent of terminating the service of the petitioner. After having heard arguments on both sides, I find it difficult to avert in this writ proceeding, the misfortune that must inevitably overtake the petitioner on an application of the present Rules under the K.E.R. In this jurisdiction I cannot act or misericordian. Ext. P.1, in terms, does not fix the duration of employment. On the other hand, the appointment has been made "subject to the provisions of Kerala Education Act and the Rules thereunder and such other rules or orders issued from time to time by Government or other competent authority". It is not therefore possible for the petitioner to contend that he has a right to continue in service till he attains the age of 60 solely on the strength of Ext. P. 1. It is true that he has put forward such a case in his affidavit in an earlier writ petition to which the present 3rd respondent was a party, and it is also true that the latter has not chosen to refute this statement in that O.P. Nevertheless, it is not proper to find a conclusion merely on the averment and non denial in the earlier O.P. Ext. P.2, which is really the source of power for Ext. P.1, is rather careful about the period during which the embargo on employment of retired teachers should be kept in abeyance. The preamble to Ext. P.2 sets out the scarcity of trained teachers who are required "for appointment in aided schools for the year 1966-67". Thus, the relaxation in regard to age is primarily motivated by the insufficient availability of teachers for the year 1966-67. The preamble to Ext. P.2 sets out the scarcity of trained teachers who are required "for appointment in aided schools for the year 1966-67". Thus, the relaxation in regard to age is primarily motivated by the insufficient availability of teachers for the year 1966-67. However, the body of the G.O. proceeds to state that superannuated teachers so appointed for the school year 1966-67 "may, if necessary, be allowed to continue till they complete the age of 60 years without reappointment". "If necessary" are the key words, according to counsel for the 3rd respondent and he argues that it is the option of the manager to extend the period of employment taking note of the availability of trained teachers and in this case he does not deem it necessary to continue the petitioner for the current year. This is a plausible argument which I will consider later, but if, as a fact, the appointment has been made on the basis that the petitioner could continue up to 60, then the construction of Ext. P.2 cannot avail the 3rd respondent. On the present materials of assertion and denial I am not prepared to venture a conclusion as to the terms of the contract. All that I need say is that if the petitioner has been appointed to serve till he attains 60 it does not run counter to Ext. P.2 and cannot be said to be illegal when it was entered into, and if a right has thus been created in his favour it is not open to the respondent to repudiate it unilaterally. A close reading of Ext. P.2 persuades me to the view that government wanted to restrict the induction of retired teachers to the minimum period and therefore allowed their appointment for one year to be continued only if the manager felt it necessary in which case the managers are given the power initially to appoint for the year 1966-67 and thereafter to continue such appointees at their choice; may be for one year or more. Thus the situation resolves itself into a question of fact as to whether the employment was for service till 60 or only 59. As stated earlier, I think it neither necessary nor proper to decide this issue of fact in the present writ petition. 3. Thus the situation resolves itself into a question of fact as to whether the employment was for service till 60 or only 59. As stated earlier, I think it neither necessary nor proper to decide this issue of fact in the present writ petition. 3. If the manager has really appointed the petitioner to serve till he attains the age of 60, and that contract is being violated now, what is the remedy of the teacher? In the earlier batch of writ petitions between teachers and managers on a similar question - and the petitioner was one such writ petitioner - Gopalan Nambiyar J. dealt with a similar argument. Before referring to how his Lordship dealt with the matter, let me advert to another aspect of the argument of the petitioner. He contended that no order of termination as such had been issued to him by the manager and that all that has happened is a communication of the A. E. O.'s intimation of Ext. P.3 The manager has the power to appoint and terminate the appointment. That power has to be exercised independently and not under dictation from Government. At any rate, some order of termination has to be passed by the manager. The petitioner's contention is that the termination is illegal since the manager has acted on account of Ext. P.3 and not independently. Therefore, even assuming that one can spell out a termination of service by the manager, it is not an act of his own volition and therefore is invalid. Lastly, there is no actual termination of service by the manager and a mere communication of the G.O., Ext. P.3, is not equal to a termination of employment. The manager, on the other hand, takes the stand that Ext. P.3. is legal, that he has decided to terminate the service of the petitioner and that what has been done is not merely to communicate the Government order formally but also to relieve the Headmaster of his post. This having been done, the Court has no power under Art.226 of the Constitution to compel the manager to reinstate the teacher, thus granting specific performance of the contract of employment even assuming a wrongful breach of contract. 4. Let me assume that the contract of employment entitles the petitioner to continue until 60. This having been done, the Court has no power under Art.226 of the Constitution to compel the manager to reinstate the teacher, thus granting specific performance of the contract of employment even assuming a wrongful breach of contract. 4. Let me assume that the contract of employment entitles the petitioner to continue until 60. Even so, can I issue a writ to compel the 3rd respondent to repair the breach and reinstate the teacher? In short, can the Court, acting under its extraordinary jurisdiction, enforce contracts specifically. The question presented in this form answers itself easily and negatively. But supposing the manager is a statutory authority created by the Kerala Education Act and Rules, has he a statutory duty in favour of the teacher which can be enforced by the issue of a writ of certiorari of this Court? Educational institutions in Kerala subsist substantially, if not entirely, on State subvention. Primary and secondary education are matters of considerable concern to the State and cannot be equated with a carrying on of some ordinary business. Indeed, the directive principles of State policy enjoin upon the State to make effective provision for securing the right to education and further insist that the State shall endeavour to provide for free and compulsory education for all children until they complete the age of 14 years. There is also the obligation of the State to promote, with special care, the educational interests of the weaker sections of the people. Thus education at various levels is a matter of public concern and a constitutional duty. It is in pursuance of these pressures that the Kerala Education Act was promulgated. And when we seek to decide the statutory status, rights and duties of managements, we must have the correct constitutional perspective. The mere fact that managers are private individuals or institutions cannot denude them of obligations when they dabble in public education. Nor can they shake themselves off from legal duties cast on them by the statute, particularly when the schools are financed almost entirely by the State exchequer. We must set our constitutional rights properly before we can perceive and appreciate the position of managers of schools as statutory functionaries. However, I am not pronouncing finally on this question, nor even probing fully into its implications because it is not necessary for disposing of the present case. We must set our constitutional rights properly before we can perceive and appreciate the position of managers of schools as statutory functionaries. However, I am not pronouncing finally on this question, nor even probing fully into its implications because it is not necessary for disposing of the present case. There is also the allied argument that even if managers are statutory entities, the employment of teachers, provided for in the statute and rules, does not give rise to rights, as such, in teachers which they can enforce through writ petitions under Art.226 of the Constitution. Do the Kerala Education Act and Rules clothe teachers with statutory rights or do they merely furnish a scheme by which managers of schools can secure grants from government of fulfilment on certain conditions and compliance with certain regulations without correspondingly creating rights in teachers? While I have no doubt in my mind that the creation of statutory rights in teachers was not only the inspiration for but is an integral part of the Kerala Education Act, and for that matter, of any scheme providing for public instruction, imparted by a contented, well paid army of teachers enjoying security of tenure, I do not finally decide that point in this writ petition for the same reason I have given earlier. 5. Ext. P.3 has been attacked as illegal because Government purports to issue it in exercise of its powers under Chap.21 R.2(2) of the K.E.R. An unfortunate mistake has crept in since R.2 sub-r.(2) has been abrogated much earlier to the issuance of Ext. P.3. If the power relied on does not exist, the order has no statutory force. True, but, even if the powers expressly relied upon in a notification do not exist, the subordinate legislation can still be salvaged if there is power elsewhere, though unspecified in the notification. While one cannot too strongly condemn misleading references to power which does not exist, one cannot conclude from that there is no other power which can give life to the notification or rule. S.12 expressly empowers Government to regulate the conditions of service of teachers in aided schools including their age of retirement. But this has to be prescribed by rules. S.36 of the Act empowers Government to make rules in all matters required or allowed by the Act to be prescribed. S.12 expressly empowers Government to regulate the conditions of service of teachers in aided schools including their age of retirement. But this has to be prescribed by rules. S.36 of the Act empowers Government to make rules in all matters required or allowed by the Act to be prescribed. If follows that the Government has the power to make rules regulating the age of retirement of teachers. Chap.21 R.2(2) makes inroad into the earlier statutory provision which was to the effect that teachers had to retire at 56, R.2 sub-r.(2) empowers Government to issue notifications enabling the employment of otherwise superannuated teachers who have retired from Government and private schools. The power to issue notifications under Chap.21 R.2(2) may carry with it the power to cancel such notifications and therefore Ext. P.3 would have been valid had Chap.21 R.2(2) been in force. As stated earlier, sub-r.(2) of R.2 was omitted by a rule promulgated in 1968. Assuming that R.2(2) is absent, can Ext. P.3 itself be said to be a rule ? There is no particular form for a rule except that it must lay down a binding rule of conduct. But a rule has got to be laid before the Legislative Assembly although in the light of some Supreme Court pronouncements the omission in this regard may not be fatal. However, counsel for the petitioner has another insuperable difficulty in his way. On his own showing, Chap.21 R.2(2) has been deleted. If so, with such repeal must fall all notifications issued thereunder. Ext. P.2 was one such and when the tree itself perishes, the branches cannot survive. In other words, a stream can rise no higher than its source and a rule framed under a statute cannot outlast the repeal of the statute unless the repealing enactment preserves the rule; this principle will apply mutatis mutandis to rules and notifications. In this view, Ext. P.2 falls with the repeal of sub-r.(2) of Rule (2) and cannot be pressed into service by the petitioner to prolong his employment up to 60. Without sub-r.(2) and Ext. P.2. it is not open to the manager to employ a superannuated teacher. But what is to happen to contracts of employment already entered into prior to the repeal? This would be the situation of the petitioner if his plea that there is already a contract in his favour employing him until 60 were true. Without sub-r.(2) and Ext. P.2. it is not open to the manager to employ a superannuated teacher. But what is to happen to contracts of employment already entered into prior to the repeal? This would be the situation of the petitioner if his plea that there is already a contract in his favour employing him until 60 were true. Can vested rights be taken away by the repeal of the law under which contracts were entered into ? This is an interesting question regarding which I can readily conceive of arguments both ways. However, at the most, it becomes a case of a contract giving rights to the petitioner and he cannot, as I have already said, enforce it through the writ Court, if I may use that expression. Once the statutory colour of Ext. P.2 disappears, I do not have to consider whether a statutory right enuring to a teacher can be enforced through the writ jurisdiction of this Court. Once the right put forward reduces itself to something created by a contract between two parties, one of whom happens to be a statutory functionary, let us assume, even then a writ will not issue because contracts cannot be enforced under Art.226 of the Constitution unless they can be related at least to the exercise of statutory functions, even if one of the parties has statutory duties. In short, the present contract relied upon by the petitioner does not have a statutory savour once we postulate that Ext. P.2 is not extant. In these circumstances, the petitioner's remedy is not here but elsewhere. 6. Let me restate the difficulties in the petitioner's way slightly differently. Will a writ lie in the circumstances of this case is the question ? Two aspects, however, have to be kept distinct. First is the enquiry, against whom a writ will issue? and next in respect of what it will issue. Ordinarily, a writ will lie against the State and statutory bodies and persons charged with public duties. Private persons, as such are not immune, although only exceptional circumstances will justify issue of a writ on their case. So much so. merely because the manager is a private person he cannot claim any sort of absolute privilege. It is the subject matter that is more decisive the nature of the obligation, the public character of the duty whose breach is complained of. So much so. merely because the manager is a private person he cannot claim any sort of absolute privilege. It is the subject matter that is more decisive the nature of the obligation, the public character of the duty whose breach is complained of. A purely private obligation even of a public functionary cannot appropriately engage a writ Court. Even so, a public duty of great moment discharged, even non statutorily, by a private individual may perhaps be enforceable under Art.226. Again a right or duty, apparently contractual may acquire a public character when a statutory regulation is superimposed. But in the present case, assuming many things in the petitioner's favour I do not see my way to grant him relief. May be, a manager has public duties; maybe, an order issued by an authority under the K.E.R. is a statutory direction enforceable by its beneficiary, the teacher, through the instrumentality of Art.226. May be, a mere contract of services between manager and teacher entered into in confirmity with and in fulfilment of statutory rules is enforceable by writ. ( AIR 1964 SC 1680 ). With all this, once R.2 sub-r.(2) stands repealed, the petitioner has, on his own showing, a bare contract without any current statutory backing. To extend the writ jurisdiction to enforce every contract is to abolish every other jurisdiction in the land. 7. It is admitted that the petitioner was relieved of his charge as Headmaster and he came with his writ petition only after he ceased to be Headmaster. His being put back into service in compliance with certain directions of this Court cannot enure to his benefit except, perhaps, to draw his salary during the period he has served, because the said order requiring the manager to continue him in service was presumably passed on the assumption that he had not been relieved. The act of court cannot operate to the injury of the parties and all that I need say now is that the petitioner having bid good bye to the institution which he brought up from its birth cannot force himself back into it on the strength of any direction or order of this Court under Art.226 of the Constitution. 8. I wish to make two things clear before I conclude. 8. I wish to make two things clear before I conclude. If the teacher has a contract in his favour, nothing that I have said here will preclude him from enforcing it in such manner as the law allows in any other forum. If the manager wants to stand by his contract, in cases where he has appointed a teacher to serve till 60 on the strength of R.2 sub-r.(2) read with Ext. P.2, can the Government or the department refuse to recognise such employment based upon the repeal of sub-r.(2) of Rule (2) or the issuance of Ext. P.3 ? I have not dealt with this question in my judgment as it does not arise before me. Here, the manager, who once befriended the petitioner to bring up the new school has now deserted him and is, indeed, denouncing him and so the question of the manager agreeing to continue the teacher but the Government interdicting such a course is a situation which does not arise in the present case. 9. In a constitutional system where the rule of law is the governing principle of life, the amplitude of constitutional remedies through Courts must expand to give close chase to and keep within constitutional bounds, State, quasi State and public activities affecting the citizen's right to life, liberty and the pursuit of happiness. This liberal approach to Art.226 notwithstanding, I am unable to accede to the petitioner's request. With these observations, I dismiss the writ petition. There will be no order as to costs.