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PETITIONER: CYRIL E. FERNANDES

       Vs.

RESPONDENT: SR. MARIA LYDIA & ORS.

DATE OF JUDGMENT08/09/1977

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. SHINGAL, P.N.

CITATION:  1977 AIR 2145            1978 SCR  (1) 388  1977 SCC  (4)  94

ACT: "Aggrieved person" in an appeal-Locus standi to question the correctness of a judgment in appeal-Scope of an appeal.

HEADNOTE: The  appeallant’s services were terminated with effect  from June  10,  1974,  with  the  approval  of  the  Director  of Education under sub-rule (2) of Rule 74 of the  Grant-in-aid Code by the first respondent.  The salary payable under  the said rule was also duly paid to him.  On June 22, 1974,  the Director  of  Education telegraphically informed  the  first respondent to "Keep in abeyance" the proposed termination of the  appellant’s services.  The telegram was followed  by  a letter dated July 25, 1974, addressed by an Under  Secretary of  the  Government  of Goa, Daman and  Diu,  directing  the management of the school to reinstate the appellant and hold an enquiry in accordance with sub-rule (3) of Rule 74 of the Code as, according to him, the termination was "in  reality" under Rule 74(3) for misconduct.  The first respondent wrote back stating that the services of the appellant had  already been  terminated  and  the  vacancy  filled  and  that   she disagreed with the view that this was a case of  termination under  Rule  74(3).   On October 8, 1974,  the  Director  of Education informed the first respondent that as she had  not "implemented the Government’s order to reinstate the teacher and  to hold an enquiry under Rule 74(3), the  main  tenancy grant other than that part of it that is meant for salary of staff  to  be paid your school has been stopped  from  today until  further  orders." The  first  respondent,  thereupon, moved the court of the Judicial Commissioner for Goa,  Daman and  Diu, at Panaji for a writ to quash the decision of  the authorities contained in the two letters dated July 25, 1974 and October 8, 1974, impleading the appellant as one of  the respondents.   The Judicial Commissioner held; (i) that  the termination  was under Rule 74 (2) which did not require  an enquiry  as  contemplated  in  Rule  74(3);  (ii)  that  the approval  given by the Director of Education was  valid  and could  not be subsequently superseded or revoked; and  (iii) the   direction  to  reinstate  the  teacher   was   without jurisdiction  and not binding on the school and,  therefore, the  stoppage  of the grant-in-aid on the  ground  that  the management  of the school had declined to comply  with  that

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direction was wrong and not authorised under the Code.   The respondent-teacher  and  not the State preferred  an  appeal against the judgment of the Judicial Commissioner. Dismissing the appeal by special leave, the Court, HELD  : The question, whether the Judicial Commissioner  was in error in issuing a writ to enforce the provisions of  the Grant-in-aid  Code  cannot be raised in this appeal  at  the instance  of the teacher.  The scope of the appeal  must  be limited  to  what  directly concerns the  appellant  in  the impugned  judgment.  A person can claim to be aggrieved,  if his legal rights are directly affected. In  the instant case the dispute was between the  management of  the  school and the Government relating to some  of  the rights  and obligations they nave against each  other  under the  Grant-in-aid  Code; the teacher, termination  of  whose services  gave  rise  to this dispute, was  impleaded  as  a proper party in the writ petition.  The scope of the  appeal is  limited  to  whom the judgment  contains  by  which  the appellant can be said to be aggrieved.  The appellant is not directly  concerned with the question whether the  rules  in the  Grant-inaid  Code conferred on the  management  of  the school an enforceable right against the Government which  is entirely   a   matter  between  the  management   and   the, Government. [390 G-H, 391 A-B, E, F] State of Assam & Anr. v. Ajit Kumar Sharma & Ors., [1965]  1 S.C.R. 890 (897), applied. 389

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 831 of 1976. From  the Judgment and Order dated 20-11-75 of the  Judicial Commissioner   Goa,   Daman  and,  Diu  in   Special   Civil Application No. 100 of 1974. R.  K.Garg,  S.  C.  Agarwala and  V.  J.  Francis  for  the Appellant. J.   P.   Mehta,  B.  R.  Agarwala  and  Janendra  Lal   for Respondent No. 1. S. N. Anand and R. N. Sachthey for Respondents 2-5. The Judgment of the Court was delivered by GUPTA,  J.  The appellant was employed as a teacher  in  the Presentation Convent High School, Margao, Goa’.  The  school is  recognised  by  the  Department  of  Education  of   the Government of the Union Territory of Goa, Daman and Diu, the 4th respondent herein, and as a condition precedent to  such recognition the school is required to comply with the  rules in  the Grant-in-aid code established by the Government  for granting   aid  to  educational  institutions.   The   first respondent  is  the, Principal and Manager of  that  school. Some time in March 1974 on receiving a complaint from a girl student  and  after making an enquiry  into  the  allegation herself,   the   first  respondent  wrote  to   the   second respondent, Director of Education of the Government of  Goa, Daman  and  Diu, seeking his approval  for  terminating  the services  of the appellant.  Sub-rule (2) of rule 74 of  the Grant-in-aid code requires the prior approval of the  Deputy Director of Education for the termination of the services of a  permanent employee.  Rule 74(2) provides inter alia  that the  services of a permanent employee may be  terminated  by the  management  without assigning any reason on  giving  as compensation 12 months’ salary to the employee if he or  she has been in the service for 10 years or more, and 6 months’ salary if he or she has been in the service for less than 10 years, but only after obtaining prior approval of the Deputy

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Director  of Education for the action proposed.  It  appears that  the Director of Education after examining  three  girl students  who were produced before him gave his approval  to the  proposed termination of the services of the  appellant. By a letter dated June 5, 1974 the first respondent informed the appellant that his services were "being terminated  with effect  from  June 10, 1974".  It is not disputed  that  the salary  payable to the appellant under rule 74(2)  was  duly paid. The events took a turn in a different direction  thereafter. On  June 22, 1974 the first respondent received  a  telegram from  the  Director  of Education asking  her  to  "keep  in abeyance"  the  proposed  termination  of  the   appellant’s services.  The telegram was followed by a letter dated  July 25,  1974 addressed by an Under Secretary of the  Government of Goa, Daman and Diu directing the management of the school to  reinstate  the  appellant  and  conduct  an  enquiry  in accordance with sub-rule (3) of rule 74 of the  Grant-in-aid code as, according to him, the termination was "in  reality" under  rule 74(3) for misconduct. Rule 74(3) provides  inter alia  that  in  all  cases  of  termination  of  service  of permanent  employees  except  the cases  mentioned  in  rule 74(2),   an  enquiry  shall  be  held  through  a   properly constituted enquiry com- 390 mittee.   It adds that "such an enquiry can be held only  in the case of insubordination, neglect of duties or misconduct (in  each case of a serious nature)".  The first  respondent wrote  back stating that the services of the  appellant  had already been terminated and the vacancy filled and that  she disagreed with the view that this was a case of  termination under rule 74(3).  Then on October 8, 1974 the Director  of’ Education informed ’the first respondent that as she had not "implemented  the Govt. order" to reinstate the teacher  and to hold an enquiry under rule 74(3), "the maintenance  grant other than that part of it that is meant for salary of staff to be paid to your school has been stopped from today  until further orders". The  first  respondent  moved  the  court  of  the  Judicial Commissioner for Goa, Daman and Diu at Panaji for a writ  to quash  the decision of the authorities contained in the  two letters dated July 25, 1974 and, October 8, 1974.  The  writ was  asked for against the Director of Education, the  Under Secretary  who  wrote  the  letter of  July  25,  1974,  the Government of the Union Territory of Goa, Daman and Diu, the Union   of  India,  and  the  Deputy  Inspector   of   South Educational  Zone.  Margao, Goa.  The present appellant  was also  impleaded as a respondent.  The Judicial  Commissioner held that the termination was under rule 74(2) which did not require  an enquiry as contemplated in rule 74(3)  and  that the  approval given by the Director of Education was.  valid and could not be subsequently superseded or revoked.  It was further held that the direction to reinstate the teacher was without  jurisdiction  and not binding on  the  school  and, therefore,  the stoppage of the grant-in-aid on  the  ground that  the  management of the school had declined  to  comply with  that direction was wrong and not authorised under  the Grant-in-aid  code.   On the question whether the  code  was enforceable by a writ, the court held on the authority of  a decision  of  the Gujarat High Court reported  in  AIR  1972 Gujarat 260 that though the code was not a statute but a set of  administrative rules "regulating the  relations  between the management of a school and the Government", where, as in the  present case, the management of the school  acted  upon the  "promises"  held  out by the Government  in  the  rules

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contained in the code and agreed to "bind themselves to  act in future as per the said rules", as between the  management and  the  Government such promises and assurances  would  be binding  and  enforceable.   The  authorities  against  whom relief  was  asked for and obtained have not  preferred  any appeal  from  this decision.  The instant appear is  by  the teacher whose services were terminated. The main contention of Mr. R. K. Garg for the appellant  has been that the Judicial Commissioner was in error in  issuing a  writ to enforce the provisions of the  Grant-in-aid  code which  have  no statutory force.  We do not think  it  is  a question which can be raised in this appeal at the  instance of  the teacher.  The writ petition questioned the  validity of  the  direction  on  the  management  of  the  school  to reinstate  the teacher and the stoppage of the  grant-in-aid as  a panel measure where the management declined to  comply with  that direction.  The authorities who were  responsible for making the impugned orders and against whom the writ has gone, have not appealed.  The dispute was between 391 the management of the school and the Government relating  to some  of the rights and obligations they have  against  each other under the Grant-in-aid code, the teacher,  termination of  whose services gave rise to this dispute, was  impleaded as  a proper party in the writ petition.  ’The scope of  the appeal is limited to what the Judgment contains by which the appellant  can be said to be aggrieved.  A person can  claim to  be aggrieved if his legal rights are directly  affected. In  State  of  Assam and another v. Ajit  Kumar  Sharma  and others(1), this Court observed               "where  such  conditions of  grant-in-aid  are               laid down by raere 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 as 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. On  the  authority of State of Assam v.  Ajit  Kumar  Sharma (supra)  it  is  clear that the appellant  is  not  directly concerned with the question whether the rules in the  Grant- in-aid  code  conferred on the management of the  school  an enforceable right against the Government which is entirely a matter  between  the  management and  the  Government.   The appellant who has no say in the matter cannot challenge  the finding on the point.  The question as to the enforceability of the Grant-in-aid code does not, thus arise in this appeal and  we  express no opinion on it. The scope of  the  appeal must  therefore  be limited to what  directly  concerns  the appellant   in   the  impugned   Judgment.    The   Judicial Commissioner has held that this was a case of termination of

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service  under rule, 74(2) which does not require a  regular enquiry as in a case to which rule 74(3) is applicable.   In spite  of  this finding the Judgment contains  some  remarks like "the behaviour of the fifth respondent was immodest and immoral" and that though an opportunity was given to him  to answer the charges levelled against him, he did not avail of that opportunity.  There has been no proper enquiry to  find out  the  truth of the allegations  against  the  appellant, indeed,  there was no occasion for any such enquiry  as  the appellant’s services were terminated by applying rule  74(2) of  the Grant-in-aid code.  We hold that these  remarks,  on the conduct of the appellant are unjustified and should  not have been made.  Subject to this, the appeal is dismissed. (1) [1965] 1 S.C.R. 890 (897). 392 We express no opinion as to whether on the facts of the case the appellant hag any legal claim against the management  of the  school;  if  he has, he is free to  enforce  it  in  an appropriate forum.  In the Circumstances of the case we make no order as to costs. S.R.                       Appeal dismissed. 393