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PETITIONER: STATE OF ASSAM AND ANOTHER

       Vs.

RESPONDENT: AJIT KUMAR SHARMA AND OTHERS

DATE OF JUDGMENT: 27/10/1964

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1965 AIR 1196            1965 SCR  (1) 890  CITATOR INFO :  R          1972 SC1126  (6)  RF         1973 SC 588  (27)  R          1977 SC2145  (4)

ACT: Constitution   of  India,  1950,   Art.   226-Administrative instructions  by  State to private  college-Carried  out  by Governing  Body-Conditions of service of teachers  affected- Right of teacher to maintain writ petition.

HEADNOTE: The respondent was a teacher in a private college affiliated to  the  Gauhati  University  in  Assam.   The  college  was receiving grants-in-aid from the State on certain conditions set  out  in  the form of Rules.  One of the  rules,  r.  7, provided  that  if  a  teacher stood  for  election  to  the Legislature,  he should be on compulsory leave  without  pay from  the date of filing of nomination till the end  of  the next  academic session or, till the termination of the  term of  the office to which he may be elected.   The  respondent applied for leave for three months and contested for a. seat in  Parliament  but  was  defeated.   So,  he  applied   for permission to rejoin, and the Governing Body granted him the permission.   The Director of Public  Instruction,  however, pointed out that such permission was in contravention of the aforesaid  rule, and therefore, the Governing Body  informed the  respondent  that he had been granted  compulsory  leave without  pay  till  the end of the  academic  session.   The respondent thereupon filed a petition in the High Court  for the  issue  of  a  writ of  mandamus  or  other  appropriate direction  on the grounds that : (i) the rule had  no  legal force, (ii) the rule did not bind the Governing Body or  the respondent and (iii) the order of the Governing Body putting him  on  compulsory leave was ineffective.  He  also  prayed that the State should be directed not to withhold the grant- inlaid  to the college if the Governing Body did not  impose compulsory leave on him.  The Governing Body was also made a party  to the petition.  The High Court held that the  rules had  no  statutory  force, and issued  a  direction  to  the

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Director,  as  a public authority, to  refrain  from  giving effect to. such rules.  The High Court also issued a similar direction  to the Governing Body, on the ground that it  had not  applied  its  independent  mind  to  the  question   of respondent’s  leave.   The  State appealed  to  the  Supreme Court,  but  did  not  dispute  that  the  Rules  were  only administrative instructions. HELD:     The order of the High Court issuing a writ to  the State through its Director should be set aside. [899 B] The  rules being mere administrative instructions  have  not the force of law as statutory rules.  They therefore  confer no  right  on the teachers of private colleges  which  would entitle them to maintain a writ petition under Art. 226, for the  enforcement or non-enforcement of any provision of  the rules.   They  being mere administrative  instructions,  are matters  between private colleges and the Government in  the matter of grants-in-aid to such colleges, and no teacher  of any college has any right under the rules to ask either  for their  enforcement  or non-enforcement.  It is open  to  the Governing Body not to carry out any such instructions and it will  then  be open to the State to consider what  grant  to make.   But if the Governing Body chooses to carry  out  the instructions  it could not be said that the instruction  was carried  out  under  any threat; and, it is not  oven  to  a teacher 891  to insist that the Governing Body should not carry out  the instruction. [897 B-H] Messrs  Raman  and  Raman v. The  State  of  Madras,  [1959] Supp.2. S.C.R. 227, referred to,

JUDGMENT: CIVIL  APPELLATE  JURISDICTION:  Civil Appeal  No.  1062  of 1963.  Appeal  by special leave from the judgment and order  dated September  25, 1962, of the Assam High Court in  Civil  Rule No. 221 of 1962. G.   S. Pathak and Naunit Lal, for the appellants. M.   K. Ramamurthy, for respondent No. 1. The Judgment of the Court was delivered by  Wanchoo  J. This is an appeal by special leave against  the judgment  of the Assam High Court.  Shri Ajit  Kumar  Sharma (hereinafter referred to as the respondent) is a teacher  in the  Handique Girls College (hereinafter referred to as  the College)  at Gauhati.  He filed a writ petition in the  High Court on the following averments.  This is a private college teaching  up to B.A. standard and affiliated to the  Gauhati University established under the Gauhati University Act, No. 16  of  1947,  (hereinafter referred to as  the  Act).   The College  is  managed by a Governing Body  according  to  the provisions  of  the Statute for the  management  of  private colleges framed by the Gauhati University under s. 21 (g) of the Act.  Under s. 23 (h) of the Act, the Executive  Council may  frame  Ordinances  to provide for  the  emoluments  and conditions  of  service  of  teachers  of  the   University, including teachers in private colleges.  The University  has in ’Pursuance of the powers so conferred on it framed  rules for the grant of leave to teachers of private colleges which are  binding on the Governing Bodies of such  colleges,  and had  actually  been  adopted by the Governing  Body  of  the College  in July 1956 for its teachers.  Under  these  rules the Governing Body of the College cannot compel a teacher to take leave without pay.

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The  College receives grant-in-aid from the State  of  Assam and  there are certain conditions for  giving  grant-in-aid. These conditions do not provide for withdrawal of the grant- in-aid  if  a private college fails to put  a  teacher,  who seeks election to a legislative or local body, on compulsory leave without pay from the date of the filing of  nomination till the end of the next academic Session or till expiry  of the term of the office to which the teacher is elected. 892 The  respondent  as  already  stated is  a  teacher  in  the College.  He applied for leave with pay from January 2, 1962 to March 5, 1962 in order to contest a seat for  Parliament. This  leave was granted to him by the Governing Body of  the College  by  resolution  No.  1  of  March  9,  1962.    The respondent   stood  for  election  and  was  defeated.    He thereupon applied that he be permitted to rejoin his  duties from  March 6, 1962 and the Governing Body permitted him  to do  so  by  its resolution No. 2 dated Match  9,  1962.   He therefore  worked as such from March 6, 1962.  On March  20, 1962, the Director of Public Instruction, Assam (hereinafter referred to as the Director) wrote a letter to the Principal and Secretary of the College with reference to the letter of March  10,  1962 from the College in  which  apparently  the Director  had  been  informed of the leave  granted  to  the respondent  and  certain other teachers in  connection  with elections to Parliament and Assam Legislative Assembly.   In this  letter, the Director informed the College that he  was unable  to  approve  the resolution of  the  Governing  Body permitting  respondent and certain other teachers to  rejoin their  duties  "immediately".  The letter pointed  out  that such  permission was in contravention of r. 7 of  the  Rules regarding  the  Conduct and Discipline of the  Employees  of Aided  Educational Institutions (hereinafter referred to  as the  Rules)  and  could  not  therefore  be  approved.   The Director  also added that the Rules had been framed in  1960 after  due  consultation with the University and  the  Assam College  Teachers"Association.  On receipt of  this  letter, the Governing Body seems to have reconsidered the matter  of leave to the respondent, and passed a resolution on April 4, 1962.  This letter along with another letter was  considered by the Governing Body of the College, and it was resolved in view of these letters that the resolution of March 9,  1962, permitting  the  respondent to rejoin duties from  March  6, 1962 could not be given effect to.  It was further  resolved that the respondent and some other teachers be granted leave in  accordance  with  the Rules.   This  resolution  of  the Governing  Body  was  conveyed  to  the  respondent  by  the Principal  of the College by letter dated April 5, 1962  and he  was  told  that he had  been  granted  compulsory  leave without pay till the end of the academic session in view  of his standing for election in the last general elections. The respondent thereupon filed the writ petition in the High Court  out  of  which the present appeal  has  arisen.   His contention was that the Rules to which the Director had made reference had no statutory force and that he was entitled to leave  under  the Rules framed by  the  Gauhati  University, which had been accepted by the                             893 College.   He also contended that the Rules not  having  the force of law did not affect the powers of the Governing Body of the College in the matter of its functions.  Consequently the  second resolution of the Governing Body dated March  9, 1962 was proper and correct and the respondent was  properly allowed  to  rejoin duty after the expiry of  his  leave  on March  6, 1962.  The Director had no authority to  interfere

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with the second resolution of the Governing Body dated March 9,  1962 and that resolutions of this character passed by  a Governing Body did not require the approval of the  Director and  would  have  effect  by  themselves.   It  was  further contended that as the leave rules which. govern the  College did not give power to the Governing Body to put a teacher on compulsory  leave without pay against his will and  consent, the resolution of the Governing Body dated April 4, 1962  by which the respondent was put on compulsory leave without pay was  of no effect and in any case the Governing Body  should not  have  acted on the illegal direction of  the  Director. Finally it was urged that the Governing Body acted as it did on  a  threat contained in the letter  from  the  Additional Director dated March 19, 1962, in which it was said that the education  department would not provide funds  for  salaries and  allowances  for any employee who had gone on  leave  in connection  with elections in contravention of r. 7  of  the Rules,  and therefore the action of the Governing  Body  was bad  and in any case the Director had no right  to  threaten the  Governing Body in this way.  The  respondent  therefore prayed     for     a    writ    in     the     nature     of certiorari  / prohibition / mandamus declaring r. 7  of  the Rules as having no legal force and also as having no binding character  on  the  Governing Body or  the  respondent.   He further  prayed  that the resolution of the  Governing  Body dated  April 4, 1962 be declared ultra vires, void  and  in- effective in law, and the Director should be directed not to withhold the grant-in-aid to be given to the College on  the failure  of  the  Governing Body to put  the  respondent  on compulsory leave without pay. Before we consider the reply of the State, we would like  to give the genesis of the Rules.  It appears that in  February 1959  the  State  of  Assam  decided  to  grant   additional grant-in-aid   to   private  colleges   to   implement   the recommendations   of   the  University   Grants   Commission regarding scales of pay and other, emoluments to the teacher of such colleges.  Apparently these scales of pay and  other emoluments  were advantageous to the teachers and  meant  an improvement  on  their pay and other emoluments  which  they were getting from before.  It was further decided that such, 894  grant-in-aid  should  be  given  to  private  colleges   on condition  that the college authorities agreed to  abide  by certain rules regulating the conditions of service of  their employees.   Accordingly  it was decided to frame  rules  in consultation  with  the  University and  the  Assam  College Teachers’  Association.  Further the views of the  Governing Bodies  of  all private colleges were also  invited  on  the draft rules.  Among them, the Governing Body of the  College was also consulted and it resolved on August 6, 1960 that it agreed   with  the  proposed  rules  contemplated   by   the Government  to  be  framed  as  communicated  to  it.    The Government  also  ascertained  the  views  of  the   Gauhati University  and the Assam College Teachers’ Association  and eventually  the  Rules were notified by  notification  dated March  9, 1961, published on March 29, 1961.  Rule 7 of  the Rules,  which  is  material for our  purposes  is  in  these terms:-               "An employee desiring to seek election to  the               Legislative  Body or to hold office  with  any               political  Organisation or local bodies  shall               be  on compulsory leave without pay  from  the               date of the filing of his nomination till  the               end  of the next academic session or till  the               termination of the term of office to which  he

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             may  be  elected  as the case  may  be.   Such               employee  however  shall  not  be  allowed  to               retain lien on his post for a period exceeding               five years." The  Rules  therefore  were  framed  in  consultation   with University  and  the Assam  College  Teachers’  Association, which  presumably  represents the teachers  of  all  private colleges.   The  Governing  Body of  the  College  was  also consulted  and it accepted the Rules to be promulgated.   In this Governing Body the members of the teaching staff of the College   are  well  represented  and  it  was   after   the concurrence   of  the  University,  the  College   Teachers’ Association  and  the  Governing  Body  of  the  College  in particular  in which the teachers of the College  were  well represented that the Rules were notified. The  case of the appellants was that considering the  manner in  which  the Rules were framed they were  binding  on  the College as well as on the teachers of the College and it was thereafter  that the Government gave the revised  grants  to the  College.   It  seems  further  that  the  case  of  the appellants was that the Rules had statutory force in view of the amendment of the Act by Assam Act 11 of 1961 by which  a proviso  was  added  to S. 21 (g) of  the  Act  whereby  the Government was given power to make the 895 necessary  rules  in  consultation with  the  University  in respect   of  government  colleges  and   government   aided colleges.   There  were  certain  other  objections  by  the appellants, to which it is unnecessary to refer. The Governing Body of the College was also made a party  to, the  writ  petition and submitted a  written-statement.   It supported  the stand taken by the State, and  in  particular pointed  out that the Governing Body in which  the  teaching staff  of the College was ten represented had  accepted  the Rules  before  they  were  notified.   In  consequence   the Government  had been giving grant-in-aid to the  College  in accordance with the recommendations of the University Grants Commission by which the pay scales etc., of the teachers had been  improved and the teachers had been receiving  the  pay and   dearness  allowance  under  this   grant-in-aid.    No representation  was ever made by any member of the  teaching staff  when  the  Rules were under  consideration  and  were notified  that  he  would not be bound by  the  Rules.   The teachers  including the respondent having accepted  the  pay and dearness allowance under the scheme of the  grant-in-aid given by the State on terms and conditions laid down in  the Rules,  the  respondent was estopped  from  challenging  the Rules  which  were  in  the  interest  of  the  College  and education in general.  The Governing Body in particular  was bound  by the Rules having accepted them and the  resolution of  April 4, 1962, was not passed on. account of any  threat by the Director. The main question that was argued before the High Court  was whether   the  Rules  in  question  had   statutory   force. Alternatively,  it was argued that even if the Rules had  no statutory force and were mere executive instructions for the purpose  of grant-in-aid, the High Court should not issue  a writ against the State or the Director interfering with such administrative instructions issued by the Director.  It  was further  urged  that  if  the  Rules  were  mere   executive instructions  which had been accepted by the Governing  Body of  the  College in which the teachers of the  College  were well represented, they would be in the nature of contractual obligations  which could not be enforced by the issue  of  a writ under Art. 226.

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The  High  Court first considered the question  whether  the Rules  had statutory force and came to the  conclusion  that they could not be said to be issued under the proviso to  s. 21(g) of the Act on which reliance was placed and  therefore did  not  have  any statutory force.   But  the  High  Court further  held that even if the Rules had no statutory  force it was open to it to issue a mandamus under Art. 226 to  the Director, who is a public authority, to refrain from, giving effect to the Rules which had no statutory force.  It 896 therefore  made  a  direction to the Director  not  to  give effect to his letter of March 20, 1962. Further  it  was  urged  before  the  High  Court  that  the Governing  Body of the College was not a statutory body  and therefore  no  writ or direction could issue to it  and  the remedy  of  the respondent was to go to the civil  court  to enforce  his  right (if any).  The High Court  however  held that  the  words of Art. 226 were wide enough  and  did  not confine  its  power  to the issue of  writs,  directions  or orders  in the nature of mandamus; they gave power to  issue directions,  orders  or  writs which  the  Court  considered proper in the circumstances of each case and such  direction could  be issued for any purpose.  The High Court  therefore held  that  as  the  Governing  Body  had  not  applied  its independent mind to the question of leave, it could issue  a direction to it also.  The High Court however did not decide whether the Governing Body was a statutory body or not,  and in  the result directed the Governing Body also not to  give effect  to the letter of the Director dated March 20,  1962. Thereupon there was a prayer to the High Court on behalf  of the  State  and  the Director for leave to  appeal  to  this Court,  which was refused.  Then the State and the  Director applied  to this Court for special leave which was  granted; and that is how the matter has come up before us.  It may be mentioned  that the Governing Body of the College  has  been made a respondent in the appeal before us. The main question which falls for decision in this appeal is whether  the  High  Court  is right in  issuing  a  writ  of mandamus to the State through the Director directing it  not to give effect to the letter of March 20, 1962.  It has  not been  contended on behalf of the appellants that  the  Rules have statutory force and :the arguments before us have  been made on the basis that the Rules have no statutory force and are  mere executive instructions given by the Government  to private  colleges as a condition for the  implementation  of pay  scales  etc.,  recommended  by  the  University  Grants Commission   for  private  colleges,  these   scales   being apparently higher than those existing from before.  It seems to us that the High Court was in error in granting a writ of mandamus  against  the State through the  Director  once  it found  that the Rules bad 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 897  of  such grants by mere executive instructions  which  have not  the force of statutory rules.  In the present case  the Rules  have been framed in order to give revised  grants  to private colleges to enable them to give higher scales of pay etc.,   to   their   teachers   in   accordance   with   the recommendation  of  the University Grants  Commission.   The

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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 instructions containing conditions on which grants would  be made to private colleges to implement the recommendations of the  University Grants Commission as to pay scales etc.,  of teachers  of  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 granted 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-inaid.  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.   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.   But  if the Governing Body chooses to carry out the instruction,  it could hardly be said that the instruction was being  carried out under any threat.  It is certainly not open to a teacher to  insist that the Governing Body should not carry out  the instruction.   The  rules for the  purpose  of  grant-in-aid being-as  in this case-merely executive instructions  confer no  right of any kind on teachers and they cannot  apply  to the High Court for a mandamus asking for the enforcement  or nonenforcement of the rules, even if indirectly there may be some  effect  on  them because  of  the  grant-in-aid  being withheld  in  whole or in part.   Such  mere  administrative instructions  even  though called rules are  only  a  matter between the Governing Body and the State 898 through  the  Director and cannot in our  opinion  form  the basis of a petition for writ under Art. 226 by a teacher. We may in this connection refer to Messrs.  Raman and  Raman v.  The State of Madras(1) where this Court had to  consider certain  orders  and directions issued under s. 43A  of  the Motor  Vehicles (Madras Amendment) Act, 1948.  The  question arose whether the orders issued under S. 43A had the  status of  law  or not.  This Court held that such orders  did  not have the status of law regulating the rights of parties  and must partake of the character of administrative orders.   It was further held that there could be no right arising out of mere executive instructions, muchness a vested right, and if such  instructions  were changed pending any  appeal,  there would  be no change in the law pending the appeal so  as  to effect  any vested right of a party.  That decision  in  our opinion governs the present case also, for it has been found by  the High Court, and it is not disputed before  us,  that the Rules are mere administrative instructions and have  not the force of law as statutory rules.  They therefore  confer no  right  on the teachers of private colleges  which  would entitle them to maintain a writ petition under Art. 226  for

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the enforcement or non-enforcement. of any provision of  the Rules.  The Rules being mere administrative instructions are matters  between private colleges and the Government in  the matter of grant-in-aid to such colleges, and no teacher of a college  has  any right under the Rules to  ask  either  for their  enforcement  or for their  non-enforcement.   We  are therefore  of opinion that the High Court was in error  when it granted a writ against the State through the Director, by which  the  Director  was asked not to give  effect  to  its letter  dated March 20, 1962, against the Governing Body  of the College. Then we come to the question whether a writ could have  been issued  against the Governing Body of the College.  We  find however  that there is no appeal by the College against  the order of the High Court issuing a writ against it.  In these circumstances we do not think that we can interfere with the order  of  the  High  Court insofar as  it  is  against  the Governing  Body of the College.  At the same time we  should like  to make it clear that we should not be taken  to  have approved  of  the  order  of  the  High  Court  against  the Governing Body of the College in circumstances like the pre- sent  and  that matter may have to be considered in  a  case where it properly arises. Before we leave this case we should like to add that it  was stated  on  behalf of the State before us that even  if  the decision went in (1)  [1959] Supp. 2 S.C.R. 227. 899  favour  of the State, it would not enforce r. 7 insofar  as the  respondent  is concerned, as the  State  was  concerned merely with the clarification of the law on the subject. In the result we allow the appeal and set aside the order of the High Court granting a writ against the State through the Director.   The  State of Assam has agreed  to  pay  counsel engaged amicus curiae for respondent, Ajit Kumar Sharma.  We therefore pass no order as to costs. Appeal allowed. Ur. 5-1 900