JUDGMENT - Deshpande V.S., C.J.-The two writ petitions of (1) Watkar and (2) Smt. Damle are referred to the Full Bench by an order dated 7-8-I98I by a Division Bench (Masodkar and Jamdar JJ). The question referred by the Division Bench, reads as follows : “Whether the writ petitions under Articles 226 and 227 of the Con­stitution of India are maintainable at the behest of the teachers for en­forcement of their entitlements under or arising out of the Secondary Schools Code?” 2. Shri Madkholkar, the learned Advocate appearing for the petitioner Watkar, made a statement at the Bar that his case is not covered by the question referred, as he is not claiming any relief under the Secondary Schools Code (hereinafter referred to as the Code). His petition seeks to enforce his right arising out of the Government Resolution referred to in his petition. The question raised in Watkar's case can be disposed of separately by the Division Bench itself without regard to the answer to the question referred being in the affirmative or negative. We, therefore, did not think it necessary to hear him and made it clear that the judgment in this case will not cover his petition. It will be placed before a Division Bench for disposal in accor­dance with law. 3. The validity of the order of the Deputy Director of Education dated 21-7-1.976 is challenged in the other petition of Smt Damle. She was appointed as an Assistant Mistress in the respondent No. 2 School (run by the Modern Education Society registered under the Societies Registration Act) on temporary basis for one session ending on 30-4-1973. She continued to serve during the period from 24-7-1972 to 30-4-1973 and for another period from 25-6-1973 to 30-4-1974. She was not in service during the academic year 1974-75. The Education Officer, Zilla Parishad, Amravati, however, by his order dated 7-11-1975 directed the respondent No. 2 to accommodate the petitioner by re-employing her in place of some other lady teacher. The order could have been at best passed only under clause 77.4 of the Code. Respon­dent No. 2 challenged the legality of this order in an appeal to the Deputy Director of Education, Amravati. The order could have been at best passed only under clause 77.4 of the Code. Respon­dent No. 2 challenged the legality of this order in an appeal to the Deputy Director of Education, Amravati. The Deputy Director found that clause 77.4 could not be attracted as the petitioner was not a permanent teacher within its conception of clause 68.3(b) of the Code and the Education Officer had no authority to pass the impugned order. It is the validity of this order dated 21-7-1976 that is challenged in this petition under Articles 226 and 227 of the Constitution. 4. The rule was granted in this petition on 8-11-1976. At the hearing before the Division Bench, the respondent No. 2 raised a preliminary objection, to the competency of the teacher to claim any rights- under the Code in such a petition, relying on a Division Bench Judgment of this Court (Tulzapurkar J. as he then was, and Shimpi J.) in (Sohanlal v. Deputy Director of Education)1. 5. The Division Bench appears to have heard the matter at some great length. It has delivered an exhaustive and a well considered order dealing with Sohanla's case and several other cases. The Division Bench felt some difficulty in accepting that (1) the Management of the Society alone could enforce the terms of the Code and not the teacher for whose protection several provisions of the Code are designed or (2) the Management alone and not the teacher can challenge adverse orders of authorities of the Education Depart­ ment, found to be discharging the quasi-judicial functions, and (3) the relations between teacher and the School Management should be held to be merely contractual when the Code regulates service conditions of such teachers of the Educational Society in the same manner as service conditions of the Government servants and employees of the statutory Corporation are regulated, and (4) the Code should still be treated as administrative instructions when the affairs of the School are run, and salaries, pensions etc. of teachers are paid out of public funds allotted from the Consolidated Fund of the State, and (5) that the School Managements, under the scheme of the Code, were not partaking “into the character of instrumentality or functionary” of the State. of teachers are paid out of public funds allotted from the Consolidated Fund of the State, and (5) that the School Managements, under the scheme of the Code, were not partaking “into the character of instrumentality or functionary” of the State. The Division Bench thought that the ratio of Sohanlal's case required reconsi­ deration in the light of several subsequent schemes introduced for the benefit of the teachers under the Government Resolutions passed in exercise of executive powers of the State and Article 162 of the Constitution relatable to the legislative powers of the State under entries 25 (Education) and 42 (the State pensions) of List II of the Seventh Schedule of the Constitution. This is how this matter came to be referred to this Full Bench for decision of the question formulated by it. 6. Then the case was opened by Shri Sohani, the learned counsel appearing for the petitioner, we felt that the language of the question referred is too wide and it would not be advisable to decide the questions covering the entire Code when the case before us raises the limited questions as to the nature, scope and sweep of clause 77.4 of the Code. We thought it proper to reframe the question and restrict the reference only to the teacher's entitle­ment under clause 77.4 and other connected clauses of the Code instead of the entitlement under or arising out of the entire Code. The reformulated question would read as follows : “Whether the writ petitions under Articles 226 and 227 of the Con­stitution of India are maintainable at the behest of the teachers for enforce­ment of their entitlements under clause 77.4 and 'other connected clauses of the Code?” 7. Shri Sohoni contends that the Code clauses are based on the Government Resolutions passed in exercise of the executive powers of the State under Article 362 and as such the same constitute statutory rules as the rules framed under Article 309 of the Constitution and not mere executive instructions. While examining the true nature of the clauses of the Code, the first difficulty is that the petition does not make any averment as to under which section of which Act the Code is framed and by which precise authority. The Code is almost silent and Shri Sohoni could not shed any light on these vexed but vital points. While examining the true nature of the clauses of the Code, the first difficulty is that the petition does not make any averment as to under which section of which Act the Code is framed and by which precise authority. The Code is almost silent and Shri Sohoni could not shed any light on these vexed but vital points. All that he could argue is that under some of the clauses of the Code, authority for the said clauses is indicated an being either the Government Resolutioa or the letter from the Director or Deputy Director of Education, or from the Government. If this Code happens to be a collection of all the relevant resolutions, letters and circulars issued from time to time by the different officers, the question that requires a? answer is which particular authority has compiled this material and under the authority of which law? Shri Sohoni could only draw our attention to a reference to some Committee in the introductory note which can be assum­ed to have done this compilation job. There again it was not possible to know what the nature of that Committee was and which functions the Committee was called upon to discharge and by whom and under which provision of law. No specific averment is made in the petition on these points nor any document having a bearing on these important questions is referred to therein. In these circumstances, we find it very difficult to hold that the entire Code or any clause thereof constitute “statutory rules” or can have the force of law or can be equated with any provision of law. The orders issued by the letters or circulars by the Government either from the Mantralaya or from the office of the Director of Education or the Deputy Director of Education can under no circumstances be treated as binding laws or statutory rules within their known conception. Cl use 77.4 under con­ sideration does not indicate what the source of its origin is and it cannot even be said of being based on any Government Resolution. Mere descrip- tion of the clauses as “rules” does not make them rules if in fact these are not such rules of which the authority of law is traceable. 8. Cl use 77.4 under con­ sideration does not indicate what the source of its origin is and it cannot even be said of being based on any Government Resolution. Mere descrip- tion of the clauses as “rules” does not make them rules if in fact these are not such rules of which the authority of law is traceable. 8. Shri Sohoni contended that the Government possesses power under Article 162 of the Constitution to declare the law by a resolution on a point on which the State Legislature is competent to enact a law and which points are not covered by any enactment or any statutory rules. Reliance was placed in support of this contention on a judgment of the Supreme Court in the case of (State of Andhra Pradesh v. L. Narendra Nath)2. There cannot be any quarrel with the proposition canvassed. In the first place, all the clauses of the Code are not claimed to have been based on the Government Resolutions. Secondly, the texts of ail the Government Resolutions also are not made available at the hearing, which are claimed to be the source of autho­rity in respect of the few of the clauses. It is difficult to know what the nature of such Government Resolutions is. All Government Resolutions cannot be claimed to be “laws” or clothed with the authority of law. The Government is required to pass resolutions day in and day out to meet several administrative contingencies. Every Government Resolution, there­fore, cannot be equated with law or assumed to have been intended to lay down any law as such within its conception in Narendra Nath's case {supra). In the absence of any such positive averments in the petition as to which particular Government Resolutions are claimed to be such laws and the required details, the same cannot be held to have been passed in exercise of the powers under Article 162 of the Constitution. The respondent State cannot be said to have had any opportunity to have its say in the matter. In the absence of any clear material it is difficult for us to hold that even those clauses of the Code, the source of which is claimed to be certain resolutions in different departments, really amount to law or amount to statutory rules. 9. In the absence of any clear material it is difficult for us to hold that even those clauses of the Code, the source of which is claimed to be certain resolutions in different departments, really amount to law or amount to statutory rules. 9. In several earlier cases decided by this Court and the Supreme Court such Codes have been adjudged to be mere executive instructions and not statutory rules of any kind. The nature of this very Code came up for consideration before the Supreme Court in the case of the (State of Maha­ rashtra v. Lok Shikshan Sanstha)3. The Judgment in the said case expressly lays down that the clauses of the Grant-in-aid Code of Maharashtra are merely executive instructions and are in the nature of administrative guide­ lines without any constitutional force. 10. Shri Sohoni's contention that the finding to the above effect is based on the concession made by the State appears to us to be devoid of any, substance. Certain educational societies who were recipients of the grants under the Grant-in-aid Code, were aggrieved by the instructions of the officers of the Education Department issued under the very Code. Writ Petitions were filed by the three Societies challenging the validity of the clauses of the Code as being violative of Articles 14 and 19 of the Constitution. A Division Bench of this Court upheld the case of the Societies. The State of Maha­ rashtra challenged this view of the High Court in the Supreme Court. One of the contentions raised by the learned Attorney General appearing for the State was that the Grant-in-aid Code constituted merely administrative and executive instructions and were not in the nature of statutory rules to attract Article 14 or 19. This contention was accepted by the Supreme Court in the following words: “It should also be made clear that as accepted by the State in its counter-affidavit filed before the High Court the provisions of the Code are executive instructions and are in the nature of administrative instruc­tions without any constitutional force. This contention was accepted by the Supreme Court in the following words: “It should also be made clear that as accepted by the State in its counter-affidavit filed before the High Court the provisions of the Code are executive instructions and are in the nature of administrative instruc­tions without any constitutional force. It is on this basis that we have to consider the correctness of the decision of the High Court when it struck down clauses (1) and (2) of Rule 3 of the Code.” [Reference to the rule in the above passage is really to the clause of the Code.] We are unable to trace any concession of any party in this passage or any part of the judgment. In fact, any concession suggested could have been made only by the educational Society and not by the State, as the finding as to the Code being administrative instructions operates ?gainst the Societies and not against the State. As the law laid down in this case by the Supreme Court is not shown to have been overruled by the Supreme Court in any subsequent case, the law is binding on us and it is not open for us to consider afresh the question whether the clauses of this Code amount to any statutory rules and not administrative instructions. 11. Shri Sohoni contends that subsequent to the decision of the Supreme Court in this case, the Code has been extensively amended. Strong reliance was placed by Shri Sohoni on the Government Resolutions sanctioning the scheme for the pensions to teachers of the schools of these Societies from the Government funds and introducing some further clauses affording security of the tenure to them. In the first place, we are unable to see how the additions in the clauses of the said Code or inclusion in the Code of several such resolutions by itself can change the original character of the Code. It can only mean that more conditions are imposed for making grants and there is addition to the executive instructions in this behalf. Even before the addition of these resolutions and the schemes evolved for the protection of the teachers, Government funds were distributed to all the schools by way of grants and the schools were run with the public funds in the same manner as the same are continuing under the additional schemes adverted to by Shri Sohoni. Even before the addition of these resolutions and the schemes evolved for the protection of the teachers, Government funds were distributed to all the schools by way of grants and the schools were run with the public funds in the same manner as the same are continuing under the additional schemes adverted to by Shri Sohoni. Public funds from which pensions are contemplated to be paid are in no way different from the funds from which salaries are paid to the teachers or other expenses of the school are intended to be reimbursed. It is difficult to see how the additional expenditure contemplated to be incurred under the schemes now evolved and added to the Code by themselves can go to alter the character of the original Code. As indicated in the Judgment of the Supreme Court, the Code only contains the terms and conditions on which the grants are paid to educational societies to enable them to run the educational institutions. We are unable to see what difference it makes even if this activity of the State is traceable to its legislative power under Entry 25 or 42 of the Concurrent List. Executive instructions also can be traced to some such entry by reference to its subject. 12. The controversy does not rest with the judgment in Lok Shikshan Sanstha's case (supra). The Supreme Court had occasion to consider the legal nature of such Codes evolved in different States for the purposes of achieving the same objective. Our attention was drawn by Shri Salve, the learned Assistant Government Pleader, to the judgment of the Supreme Court in (Regina v. St. A. H. E. School)4. The Supreme Court in this case took into account the provisions of the Madras Elementary Education Act, 1920, .under which the original Grant-in-aid Scheme was introduced in the State of Madras. The relevant Chapters II, IV and VI and section 65 in Chapter VII, under which (he Grant-in-aid Code was originally formulated were subsequently repealed. Rules framed by the Government under the said Act were divided into two parts. The Supreme Court took notice of these changes. The rules under Part I were accepted as statutory rules by the Supreme Court us the authority therefor could be traced in certain sections of the Act. Rules framed by the Government under the said Act were divided into two parts. The Supreme Court took notice of these changes. The rules under Part I were accepted as statutory rules by the Supreme Court us the authority therefor could be traced in certain sections of the Act. The Rules in Part II covering the Grant-in-aid Code, however, were found to be lacking in such statutory support because of the deletion of the said Chapters from the enactment. It is on these grounds that the Supreme Court treated the said clauses of the Code as being merely administrative instructions. That is how the said rules were held not to be the basis of the relations between the Management of the school and its teachers though they were found to be binding on the Management of the school because of the receipt of the grants by it thereunder. 13. The Supreme Court had then occasion to consider the nature of the Assam Aided College Employees Rules, 1960, in the case of the (State of Assam v. Ajit Kumar Sarma)5. The teacher Ajit Kumar Sarma contested election to Parliament and obtained leave for that. After defeat, his application to rejoin the duties was accepted by the Governing Body. The Director of Education, however, did not approve of this permission, it being found to be in contravention of the rules regarding the conduct and discipline of the employees of the said institution. The Governing Body thereupon withdrew the permission. The teacher challenged the validity of this withdrawal by a writ petition in the High Court. The High Court held that the Assam Aided College Employees Rules, 1960, were not in the nature of statutory rules. Even so, the teacher's application was allowed on the ground that the Govern­ing Body did not exercise its own Judgment in the matter. The Supreme Court set aside this order by holding that writ could not have been granted when it was found that the rules under which the remedy was being claime had no statutory force and were merely in the nature of administrativeinstructions for the purpose of giving grant-in-aid to private colleges. The Supreme Court thus observed: “What grants the State should make to private educational institutions, and upon what terms are matters for the State to decide. The Supreme Court thus observed: “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.” 14. Shri Sohoni contends that this Judgment also is based on the concession in that the adverse finding of the High Court was not challenged before the Supreme Court and hence the point cannot be said to have been concluded. It is difficult to agree with Shri Sohoni. If the finding of the High Court is not disputed and the Supreme Court declares law on the basis of such undisputed finding, the effectiveness and binding nature of the law is not affected thereby. 15. In a recent judgment in (C. E. Fernandes v. Myria)6, the Supreme Court has quoted with approval the above passage at page 2147. The Society's writ petition against the adverse decision of the Director of Education re­instating the teacher was allowed by the Judicial Commissioner of Goa relying on the Gujarat High Court's judgment in (Amratlal v. State of Gujarat)7 hold-ing that the Society can claim relief even on the basis of instructions contain­ed in the Code. The Director's order was held to be bad in law. The Supreme Court upheld the impugned order and held that the teacher was not competent to raise any objection to the order as the enforceability of any order under the Code was a matter of dispute between the School Management and the Government. The teacher was held as not entitled to claim any right under the Grant-in-aid Code on the basis of its earlier judgment in Ajit Kumar's case (supra), the relevant passage from which is quoted at page 2147, para-graph'4. The teacher was held as not entitled to claim any right under the Grant-in-aid Code on the basis of its earlier judgment in Ajit Kumar's case (supra), the relevant passage from which is quoted at page 2147, para-graph'4. The Supreme Court, however, declined to go into the merits of the finding of the Judicial Commissioner at the instance of the teacher who can have “no say in the matter”. 16. In view of these wide observations in the three judgments of the Supreme Court we do not find it possible to take any different view on the question whether the clauses of the Code amount to statutory rules or not. Following the ratio of these Judgments we shall have to proceed on the basis that the clauses of the Code do not amount to statutory rules. 17. Shri Sohoni then contended that in either case it is highly inequit­ able that the Management of the Society should be able to evoke the jurisdiction of the High Court under Article 226' or 227 of the Constitution to enforce its right arising out of the Code and yet the teacher for whose benefit the Code is conceived and conditions are imposed on the School Managements, should be prevented from enforcing the terms thereof in case when the Management refuses to comply with the same or the Educational Authorities entrusted with the duty to enforce fail to secure compliance by the Management. Apparently the contention sounds plausible and impressive. The contention still cannot be acceptable. In Regina's case as well as in Ajit Kumar's and Femandes's cases {supra), the Supreme Court. has expressly overruled such a contention. The examination of the nature of the Code provisions and the finding that the same amount to executive or administrative instructions having no statutory or legal effect became necessary in these cases only to decide if the teacher can claim any right to enforce the same in the Court. In Sohan Lal's case this Court followed the ratio of the Supreme Court judgment in Regina's case (supra). Following the said ratio, this Court held that the teacher cannot enforce the executive instructions, it being not the law and contractual obliga­tion of the School Management, cannot be enforced by remedy of writ. The Supreme Court's view in Regina's case is affirmed in Ajit Kumar's and Fernandes's cases even on this point. Following the said ratio, this Court held that the teacher cannot enforce the executive instructions, it being not the law and contractual obliga­tion of the School Management, cannot be enforced by remedy of writ. The Supreme Court's view in Regina's case is affirmed in Ajit Kumar's and Fernandes's cases even on this point. A Division Bench of this Court in Secretary, (Bishop Cotton School v, S. M. Yakub)8, accepted the right of the School Management to enforce the terms of the Code by writ following the ratio of the Gujarat High Court Judgment in Amratlal's case (supra). This view of the Gujarat High Court is affirmed by the Supreme Court in Fernandes's case. This law laid down in Sohan Lal's case as also in Bishop Cotton School's case by this Court is virtually based on the law laid down by the Supreme Court. It is not open to take any different view and reconsider the same. Reliance on the provisions of the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965, or the regulations thereunder or the legislative entries 25 and 42 of List II of the Seventh Schedule of the Constitution appears to us to be farfetched and. irrelevant, apart from our incompetency to ignore the Supreme Court dicta on any such ground. 18. If the arrangement and terms in between the Government and theeducational societies indicated in the Code adverted to in Lok Shikshan Sanstha's case (supra) for the purpose of enabling the latter to receive funds cannot create any right in favour of third parties, such as, teachers, introduc­ ing still more conditions for receipt of the grants for the protection of the teachers, and making provisions for the pension of the teachers, still cannot make the teacher directly a party to these terms. It is true that pensions are payable to the teachers directly even without the intervention of the School Management after the teacher's contract with it comes to an end. This may enable the teacher to claim pension directly from the Government and in that case the Government may be amenable to the writ jurisdiction to answer any teacher's grievance in that behalf. That is not relevant to consider the nature of the Code as regards the teacher's claim against the School Management. This may enable the teacher to claim pension directly from the Government and in that case the Government may be amenable to the writ jurisdiction to answer any teacher's grievance in that behalf. That is not relevant to consider the nature of the Code as regards the teacher's claim against the School Management. Provisions enabling the teachers to get their grievances adjudged through enquiry committee or by representation to the authorities of the Education Department named in the Code are obviously aimed at ensuring due compli­ ance of the terms by the Management of the Society receiving the grants. 19. Much as one would like to extend the relief to the aggrieved and helpless teacher, it is not open for us to consider whether the ratio of the Supreme Court case would have been different if such additional factual factors could have been taken into consideration. The Division Bench has made extensive references to some such additional factors to which obviously the attention of the Supreme Court was not or could not have been drawn. We do not think that we will be justified in taking these factors into account and ignoring the ratio of Supreme Court judgment on that basis. The law laid down by the Supreme Court is binding on us and the ratio of the Supreme Court judgment cannot be ignored merely because some features or aspects of the controversy were not taken into account by it. 20. Shri Sohoni then contended that even if the teacher is not in a position to seek enforcement of any terms of the Grant-in-aid Code the teacher would still be entitled to challenge the order of the functionary under the Code such as the Deputy Director of Education whenever such order can be demons­ trated to be arbitrary, capricious or in violation of the principles of natural justice. We are informed by Shri Madkholkar that such a contention is accepted by a Division Bench of this Court in its judgment dated 26-11-1980 in Writ Petition No. 875 of 1974 and Writ Petition No. 1058 of 1974. We are informed by Shri Madkholkar that such a contention is accepted by a Division Bench of this Court in its judgment dated 26-11-1980 in Writ Petition No. 875 of 1974 and Writ Petition No. 1058 of 1974. A claim of teacher to enforce any contractual right against the employer school or claim as a beneficiary under the Code may stand on a different footing from his claim to compel the authorities of the Education Department, to perform their duties under the Code in regard to their appeals or representations permitted under the Code. Suffice it to say that no such question arises in the present petition nor can the question be said to be covered by the reference made to us. We do not propose to express any opinion on this point in this reference. 21. Shri Sohoni contends that the educational societies are also instru­mentalities of the State for the enforcement of its educational policies and as such are the “other authorities” within their conception under Article 12 of the Constitution. He, therefore, contends that even if a teacher is not in a posi­tion to enforce any term of the Code he is still entitled to enforce his funda­mental rights under Article 14 of the Constitution. The reference order also deals with this point at some length. In support of his contention Shri Sohoni strongly relied upon the judgment of the Supreme Court in (Ajay Hasla v. Klialid Mujib9. Bhagwati J., speaking for the Court, has enumerated the tests to determine as to when a corporation can be said to be an instrumentality or agency of the Government for the purpose of being accepted as “other autho­rities” within their conception under Article 12 of the Constitution. It must at the outset be mentioned that the facts required for attracting any of the six tests enumerated in paragraph 9 of the judgment do not appear to have been properly pleaded in this petition. We will assume that respondent No. 2 Society is also a corporation for the purposes of arguments. The question of satisfying the first test of the entire share capital being held by the Government does not arise in the present case. At any rate the Government is not shown or alleged to have held the entire share capital of the Society. The question of satisfying the first test of the entire share capital being held by the Government does not arise in the present case. At any rate the Government is not shown or alleged to have held the entire share capital of the Society. It is also not possible for us to hold on the material before us that almost the entire expen­diture of the Society is met with the financial assistance from the State. All that Shri Sohoni could inform us is that 100 percent salary of the teachers is paid from the aid given by the Slate. That certainly cannot account for the other expenditure required to run the Society. The question of the Society enjoining the monopoly status adverted to in test No. (3) cannot arise in the present case. There is no material in the petition to enable us to hold that the State possesses deep and pervasive control in the affairs of the Society. It is not even suggested that the Management of the Society is appointed by the State or that elections thereto are controlled or guided by the State or its officers. There is no material to suggest that this educational Society is of public impor­tance and discharges such functions, as we do not know what other work is carried on apart from running the school. The question of any Government Department being transferred to this Society does not arise in the present case. None of these six tests can be said to exist in the present case. The Manage­ment of the Society cannot be said to be an instrumentality or agency of the State as indicated in this Judgment of the Supreme Court. 22. The result is that the question as reframed shall have to be answered in the negative.