JAYANTILAL KESHAVLAL JANI v. STATE — 1971 DIGILAW 17 (GUJ)

S. H. SHETH, J. ( 1 ) THE petitioner was employed as a teacher on 14th April 1965 by Vijaynagar Madhyamik Kelvani Mandal to serve as a teacher in the High School managed by it. In the first instance he was appointed on probation for a period of two years. Sometime in 1967 a notice was served upon him terminating his services. It gave no reasons for the proposed action. In or about August 1967 the Educational Inspector Sabarkantha District issued a direction to the Kelvani Mandal to reinstate the petitioner in service and to pay his salary. It appears that that direction was complied with by the Kelvani Mandal. On 29th March 1968 the Kelvani Mandal again served upon the petitioner order terminating his services. It appears that a copy of that order was sent by the Kelvani Mandal to the Educational Inspector Sabarkantha District as contemplated by Clause (viii) of Rule 69. 9 of the Grant in aid Code. In May 1968 the Educational Inspector Sabarkantha District appears to have issued a direction to the Kelvani Mandal to reinstate the petitioner and to pay him all his salaries. Having been aggrieved by that direction the Kelvani Mandal appealed to the Director of Education on 17th August 1968. That appeal purports to have been filed under Clause (ix) of Rule 69. 9 of the Grant in aid Code. The Director of Education dismissed the appeal. He also directed the Kelvani Mandal to pay to the petitioner all his salaries on or before 19th February 1969. Thereupon the Kelvani Mandal moved the State Government under Rule 126 of the Grant in aid Code for the revision of the order passed by the Director of Education and the direction issued by the Educational Inspector Sabarkantha District. On 20th June 1970 the State Government allowed that Revision Application and ordered that the petitioner shall be considered to have been discharged from service of the Kelvani Mandal with effect from 1st April 1968 and that the petitioner shall be paid compensation by the Kelvani Mandal amounting to his salary for a period of six months. ( 2 ) IT is this order made by the State Government purporting to be in exercise of its powers under Rule 126 of the Grant in aid Code that this Special Civil Application has been directed. ( 2 ) IT is this order made by the State Government purporting to be in exercise of its powers under Rule 126 of the Grant in aid Code that this Special Civil Application has been directed. ( 3 ) THE only contention which has been raised by Mr. Shah appearing for the petitioner is that under Rule 126 of the Grant-in aid Code an order can be made by the State Government only for the purpose of satisfying itself as to the correctness or propriety of a decision recorded or an order made in an appeal. Rule 126 of the Grant in aid Code provides as follows. NOTWITHSTANDING anything contained in this Code the State Government may call for and examine the record of any order made or decision taken under the provisions of this Code including those passed or taken in appeal for the purpose of satisfying itself as to the correctness or propriety of the said order or decision and if. after causing such inquiry to be made as it may deem fit it appears to it that in any case the said order or decision should be modified annulled or reversed the State Government may pass such orders thereon as it deems fitprovided that no such order shall be made by the State Government to the prejudice of any person or institution as the case may be unless such person or representative of such institution has been given a reasonable opportunity of showing cause against the order proposed to be made. ON the basis of the provisions of Rule 126 the only grievance which the petitioner has made before me is that the order made by the State Government while revising the appellate order of the Director of Education does not show why and for what reasons the State Government thought that the appellate order of the Director of Education was not correct or proper. Rule 126 does not confer upon the State Government plenary power of modifying annulling or reversing any decision of the subordinate officer but it empowers the State Government to revise the order made by the subordinate officer only if the State Government finds that the order which it seeks to revise is either not correct or not proper. In other words if the State Government is not satisfied as to its correctness or propriety the State Government can revise the order. In other words if the State Government is not satisfied as to its correctness or propriety the State Government can revise the order. In my opinion the requirement laid down by the expression for the purpose of satisfying itself as to the correctness or propriety of the said order or decision. . occurring in Rule 126 imposes upon the State Government a fetter in the matter of exercise of its power under Rule 126. It can exercise power under that Rule only to correct an incorrect order or to set right an order which in its opinion is not proper. This language used in Rule 126 in my opinion presupposes that the State Government must state why it is not satisfied as to the correctness or propriety of the order which it seeks to revise. Unless the State Government states the reasons for arriving at the decision that the order sought to be revised by it is not correct or proper any exercise of power by the State Government under Rule 126 will in my opinion be arbitrary and capricious. The powers which the State Government has assumed to itself are indeed wide. It has not only the power to interfere at the final stage but it has also got power to interfere at an interim stage. Rule 127 of the Grant in aid Code which confers upon the State Government power to make interim orders provides as follows. GOVERNMENT may pending such examination direct the execution of the said order or decision to be suspended. ( 4 ) MISS Shah appearing for the Kelvani Mandal has raised a couple of contentions before me in support of the order which the State Government has made. I shall be shortly dealing with them. However on the language of Rule 126 in my opinion it is necessary the State Government to state the reasons when it seeks to revise an order on the ground that it is not correct or proper. The State Government cannot mentality think of the reasons for which it finds the order of the subordinate officer incorrect or improper and without telling the person who is going to be affected by its order make an order revising the order of the subordinate authority or subordinate officer So far as the instant case is concerned the original order made by the State Government has not been produced. All that the petitioner was given was an intimation of that order by the Educational Inspector Sabarkantha District by his letter dated 26 June 1970. In the said letter the petitioner was told that the State Government had made an order on 20th June 1970 directing that he shall be considered to have been discharged from service of Vijaynagar Madhyamik School with effect from 1st April 1968 and that he shall be paid six months salary as compensation. This intimation of the order made by the State Government does not state the reasons which led the State Government to make that order. The order made by the State Government itself has also not been produced before me to show whether it has recorded any reasons for arriving at the impugned decision. In my opinion. therefore the order which the State Government in this case has made against the petitioner has not been made in compliance with the provisions of Rule 126 of the Grant in aid Code and is therefore contrary to it. ( 5 ) IN support of the impugned order Miss Shah has first contended that the Grant in aid Code issues merely executive instructions and it does not confer upon anyone any right. In support of her contention she has invited my attention to all unreported decision of High Court in Special Civil Application No. 484 of 1963 decided on 1st/2nd March 1967 by a Division Bench of this High Court consisting of Chief Justice Miabhoy and Mr. Justice Desai. Referring to the Rules contained in the Grant-in-aid Code this is what the Division Bench has observed. A perusal of the various rules therefore does not leave any doubt that though the Code calls its provisions as rules they are not rules framed under any statute but are departmental instructions issued by the Government for the purpose of regulating the conduct of the above kind of educational institutions in order that they may either earn or fail to earn a Government grant in aid. In that view of the matter the question arises for consideration as to whether even on the assumption that under the Code petitioner should have been given a charge-sheet and the alleged misconduct enquired into after giving him a reasonable opportunity whether this Court would be justified in issuing a writ or a direction against the respondent for the breach of the relevant rule. In this connection it is important to notice that respondent is not a public authority and that the above Code does not confer any rights on petitioner directly. Inspite of what the Code has stated in regard to how the educational institutions should conduct themselves in regard to their teaching staff it is doubtful whether the provisions contained therein can be stated to be conditions of service imported into the contract of service between respondent and petitioner on which in the ultimate analysis from a legal stand point the rights and liabilities of the parties would be governed. Having regard to the fact that respondent is a private institution the relationship between petitioner and respondent would be governed by the terms of the contract between them. It is not the case of petitioner that he holds by virtue of those terms a public office and having regard to the fact that the Code does not contain any statutory rules it cannot be said that petitioner has any statutory rights under the Code which require to be enforced. IN that decision the decision of the Madras High Court in A. Ramaswami Iyengar v. State of Madras A. I. R. 1962 Madras 387 has been considered and the principle laid down therein has been approved. This is what the Division Bench observed in that behalf. IN the case of A. Ramaswami Iyengar v. State of Madras. reported in A. I. R. 1962 Mad. page 387 Anatanarayanan J. held with reference to the Grant in aid Code of the Madras State that the provisions of the Code would not have the effect of enlarging or qualifying the terms of contract between the teacher and the management. IN the case of A. Ramaswami Iyengar v. State of Madras. reported in A. I. R. 1962 Mad. page 387 Anatanarayanan J. held with reference to the Grant in aid Code of the Madras State that the provisions of the Code would not have the effect of enlarging or qualifying the terms of contract between the teacher and the management. He held that as between the management and the teacher the implied or the express terms of the contract would alone govern their mutual relationship and If the State stepped into the picture at all as an agency recognising the institution and giving it financial aid it might very well be that this aid was hedged around with certain conditions which the management would have to observe if it required the continuance of the recognition or of the aid. But from a strictly legal point of view a private individual who is an employee of this private institution cannot invoke those conditions in support of a redress claimed by him against his employer (the school) of a scope wider than the implied and express terms of the contract of employment. In our judgment there is considerable force in the view taken by the learned Judge and we have no hesitation in holding that the view so expressed by the learned Judge correctly reproduces the law on the subject. DEALING with the scope of Article 226 in matters of this type this is what the Division Bench in that unreported judgment has observed. BUT then the question still remains as to whether a breach of that implied condition would be only a breach of a term of a contract or whether it would be a breach of such a nature as to invite interference of this Court under Article 226 of the Constitution. Now in our judgment having regard to our conclusion that the Code contains nothing but administrative instruction it cannot be stated that petitioner has such a right as can be enforced by resort to Article 226 of the Constitution. IN that decision reliance was placed upon the decision of the Supreme Court in M/s Burmah Construction Company v. The State of Orissa and others reported in A. I. R. 1962 Supreme Court page 1320 wherein the Supreme Court has observed as under. IN that decision reliance was placed upon the decision of the Supreme Court in M/s Burmah Construction Company v. The State of Orissa and others reported in A. I. R. 1962 Supreme Court page 1320 wherein the Supreme Court has observed as under. THE High Court normally does not entertain a petition under Art. 226 of the Constitution to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. RELIANCE was also placed in that decision on another decision of the Supreme Court in The State of Assam and others v. Ajit Kumar Sharma and others A. I. R. 1965 Supreme Court 1196. In that decision the Supreme Court has observed as under. IT seems to us that the High Court was in error in granting a writ of mandamus against the State through the Director once it found that the Rules had no statutory force and were mere administrative instructions for the purpose of giving grant in aid to private colleges. What grants the State should make to private educational institutions and upon what terms are matters for the State to decide. Conditions of these grants may be prescribed by statutory rules there is however no law to prevent the State from prescribing the conditions 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 recommendations of the University Grants Commission. The Rules have been held by the High Court to have no statutory force and that is not disputed before us. In these circumstances it is clear that the Rules are mere executive instruction containing conditions on which grants would be made to private colleges to implement the recommendations of the University Grams Commission as to pay scales etc. of teachers of 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. of teachers of 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 in aid which is contingent on its accepting the conditions contained in the instructions. On the other hand if the college accepts the conditions contained in the instructions it receives the grant in aid If however having accepted the instructions containing the conditions and terms the college does not carry out the instructions the Government will naturally have the right to withhold the grant in aid. That is however a matter between the Government and the private college concerned. Such conditions and instructions to grant in aid confer no right on the teachers of the private colleges and they cannot ask that either a particular instruction or condition should be enforced or should not be enforced. It is only for the Governing 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 will then be naturally open to the State to consider what grant to make ( 6 ) SO far as this decision is concerned in my opinion it has no application to the facts of the present case for the following reasons. It is no doubt true that what are called Rules contained in the Grant in aid Code are executive or administrative instructions principally governing the disbursement of grant in aid to educational institutions. But so far as the facts of the aforesaid unreported decision are concerned firstly what was sought to be done in that case was to enforce a right flowing from the Grant in aid Code. Since the Grant in aid Code was held to be a compilation of administrative instructions any right which flowed from it did not enjoy the character of an enforceable legal right. That is not the situation here. What the State Government purports to have done in this case is to exercise its power under Rule 126 and to impose an adverse decision upon a party. That is not the situation here. What the State Government purports to have done in this case is to exercise its power under Rule 126 and to impose an adverse decision upon a party. Any person who undoubtedly suffers at the hands of the State in exercise of its power whether that power is exercised under the force of a statute or otherwise is entitled to call that action of the State in question in a Court of law and is entitled to get the injustice done to him set aside. If no right purporting to flow from the Grant in aid Code can be enforced by a writ of this Court it must be taken to be equally true that no disability can be imposed upon a person by virtue of what is contained in the Grant in aid Code. However it is not necessary for me to state the proposition so widely as I have done. For the purpose of the present case it is sufficient to say that if the State Government purports to exercise the power under the Grant in aid Code it must exercise the power in compliance with the standard which it has laid down administratively or otherwise. It cannot on one hand assume to itself the power under what is called the administrative directions and then again claim exemption from the restrictions to which the exercise of that power is subjected. Though the Rules contained in the Code are not statutory Rules it is certainly a Code of behaviour which the State Government has laid down for itself apart from others whom it may affect. If it purports to exercise its power under any of the Rules contained in the Grant in aid Code it must be in accordance with the conditions land down therein and the restrictions imposed thereby. To take any other view of the matter is to leave to the State Government the exercise of unfettered power in derogation to the rights of the citizens. That cannot be allowed to be done. ( 7 ) MISS Shah has invited my attention to another unreported decision of Mr. Justice J. B. Mehta in Special Civil Application No. 1513 of 1965 decided on 5th/9th December 1969. In regard to the Grant-in aid Code what has been observed by the learned Judge in that decision is as under. That cannot be allowed to be done. ( 7 ) MISS Shah has invited my attention to another unreported decision of Mr. Justice J. B. Mehta in Special Civil Application No. 1513 of 1965 decided on 5th/9th December 1969. In regard to the Grant-in aid Code what has been observed by the learned Judge in that decision is as under. IT is well settled after the decision of the Supreme Court in State of Assam A. J. Karna A. I. R. 1965 S. C. 1196 that such grant in aid Code rules are by way of administrative instructions and they confer no rights on the teachers. Such rules being merely executive instructions they confer no rights of any kind on the teachers and the teachers cannot apply to the High Court for a mandamus against the State through the Director of Public Instructions for enforcement or non enforcement of the rules provided in the Code or for a direction as to the 6rant in aid being withheld by them in whole or in part. THE learned Judge thereafter refers to the unreported decision of the Division Bench of this High Court to which I have already referred. The principle laid down in that unreported decision cannot be applied to the facts of the present case because what the petitioner wants me to do is not to enforce any legal right of his flowing from the Grant in aid Code against the State Government. What he complains of is the exercise of power by the State Government by which he has been subjected to an adverse decision. The State Government may exercise its power either in accordance with the statute or otherwise. Since the Rules contained in the Grant in aid Code do not have statutory force it must be said that the State Government has exercised the power otherwise than under the force of a statute. If it has exercised power otherwise than under the force of a statute or the force of a law and the petitioner has been subjected to an adverse decision in exercise of such power that decision in my opinion is liable to be struck down. If it has exercised power otherwise than under the force of a statute or the force of a law and the petitioner has been subjected to an adverse decision in exercise of such power that decision in my opinion is liable to be struck down. If it has done so under Rule 126 of the Grant in aid Code assuming that the provisions contained therein are not enforceable by a writ of this Court then what the State Government has done ought to have been done in accordance with the provisions contained therein. In any view of the matter therefore the order made by the State Government suffers from a serious infirmity. ( 8 ) MISS Shah has next argued before me that no reasons are necessary to be stated in support of an order not amenable to a writ of this Court under Article 226. In my opinion if any order has been made by an executive authority which adversely affects a citizen and for which there is no justification in law then certainly such an order is amenable to a writ of this Court. In this case the order which has been made by the State Government adversely affects the petitioner and if the Rules contained in the Grant in aid Code are purely administrative directions there is no legal justification for the exercise of that power. Accepting the argument advanced by Miss Shah at their face value it is very clear that there was no justification for the State Government to exercise any such power because it has none in law. If it had none in law and if it did exercise such power to the detriment of a citizen the result flowing from exercise of such power is amenable to a writ of this Court and is liable to be struck down. ( 9 ) IT has been next contended by Miss Shah that to the facts of this case application of Article 226 of the Constitution cannot be attracted. In some other context in this judgment I have already stated the reasons which lead in my opinion to the application of Article 226 of the Constitution to the facts of the present case. The power which has been exercised by the State Government appears to be outside the realm of law. There is no legal justification for the exercise of that power. The power which has been exercised by the State Government appears to be outside the realm of law. There is no legal justification for the exercise of that power. In exercise of that power the State Government has rendered a decision adversely affecting the petitioner. In so far it adversely affects the rights of the petitioner the order made by the State Government is in my opinion liable to be struck down by a writ of this Court. ( 10 ) MISS Shah has further contended before me that the order made by the Educational Inspector Sabarkantha District was without jurisdiction and beyond his power. According to her that order was erroneously confirmed by the Director of Education. Therefore submits Miss Shah the State Government was entitled to set aside that order and set right the matter. I am not concerned with what the Educational Inspector had done. The only complaint which has been made before me is against the order recorded by the State Government. If an erroneous order was made by the Educational Inspector Sabarkantha District against the Kelvani Mandal it was open to the Kelvani Mandal to resort to appropriate legal machinery to have that order set aside or to have that order quashed. It did not do so. It availed of the machinery provided for by the Rules contained in the Grant in aid Code. Having taken advantage of the Rules contained in the Grant in aid Code it is not open to the Kelvani Mandal to say that the State Government either under Rule 126 of the Grant in aid Code or otherwise was entitled to set right what according to it was done by the Educational Inspector without jurisdiction or without power. That contention raised by Miss Shah on behalf of the Kelvani Mandal is therefore rejected. ( 11 ) FOR the reasons stated above therefore the petitioner in my opinion is entitled to succeed in this petition. ( 12 ) I therefore allow the petition and order a writ of mandamus to issue directing the State Government to cancel its order No. SSN-3469-488-31-G dated 20th June 1970 made in its Education and Labour Department in the matter of the petitioner versus Vijaynagar Madhyamik Kelvani Mandal Rule is made absolute. In the circumstances of this case there shall be no order as to costs. .