Supreme Court of India
FRANCIS JOHNversusDIRECTOR OF EDUCATION AND ORS.
- Citation
- 1989 INSC 359
- Decided
- 23 November 1989
- Disposal
- Appeal(s) allowed
- Bench
- E S VENKATARAMIAH
Holding
Orders of the Director of Education and the Dispute Settlement Committee in grant‑in‑aid private schools are amenable to the High Court's writ jurisdiction under Article 226.
Summary
Francis John, a headmaster of a private school that received government grant-in-aid, was terminated under Rule 74.2 of the Grant‑in‑aid Code after a Dispute Settlement Committee (DSC) recommended dismissal and the Director of Education approved it. John filed a writ petition under Article 226 of the Constitution challenging the Director’s order; the High Court dismissed the petition, holding it was not maintainable against a private school’s management. The Supreme Court held that because the school received public aid and the Director of Education, a state functionary, participated in the decision‑making, the order was a public law act amenable to judicial review. Relying on the precedent set in Tika Ram v. Mundikota Shikshan Prasarak Manda, the Court overruled the High Court’s view and remanded the matter for a merits hearing. The appeal was allowed and the High Court’s judgment set aside, with no order as to costs.
Issues considered
- Whether a writ petition under Article 226 is maintainable against the Director of Education and the Dispute Settlement Committee in a private school receiving grant‑in‑aid.
- Whether the Director of Education’s order constitutes a public law act subject to judicial review.
- Whether the Grant‑in‑aid Code, though not a statute, creates enforceable rights for employees of aided private schools.
Legislation cited
Subjects
grant‑in‑aidprivate schooltermination of serviceArticle 226writ jurisdictionDirector of EducationDispute Settlement Committeenatural justicepublic law
Judgment
FRANCIS JOHN
A
v.
DIRECTOR OF EDUCATION AND ORS.
NOVEMBER 23, 1989
B [E.S. VENKATARAMIAH, CJ., K.N. SINGH AND
N.M. KASLIWAL, JJ.)
Goa, Damam and Diu Grant-in-aid Code: Rule 74.2-Termina-
tion of services of permanent teacher-Dispute Settlement Committee
-Jurisdiction to enquire.
c Constitution of India: Article 226--Private School recelVlng
government aid under Grant-in-aid Code-Termination of services of a
reacher-Orders of Dispute Settlement Committee and Director of
Education-Amenable io High Court's Writ jurisdiction.
D Disciplinary proceedings were started against the appellant who
was a headmaster in a private school in accordance with the Role 74.2
of the Grant-in-aid Code since the school was a recipient of grant as per
the code. The Director of Education approved the findings of the Dis-
pute Settlement Committee and permitted the termination of the appel-
lant hy the Principal of the School. The said order of termination was
E challenged by the appellant before the High Court of Bombay, Panaji
Bench, in a Writ Petition. The petition was dismissed by the Hij:h Court
upholding the preliminary objection that the petition was not maintain-
able under Article 226 of the Constitution of India against the manage-
me9t' of the School which was a private body. Aggrieved by the decision
of the High Court the appellant fded this appeal by special leave.
F
According to the relevant rule of the Grant-in-aid Code the
management could not have terminated the services of the appellant
without the communication received by ii from the Director of Educa-
tion who was a public functionary and was discharging a governmental
function as an authority constituted for the said purpose by the govern-
G ment. Obviously in such circumstances ii cannot be said that the deci-
sion is just that of a private management governed by private law. The
High Court erred in not properly following the ratio of the decision of
this Court in Tika Ram's case the facts of which were not substantially
different from the facts of the present case. This Court while setting
aside the judgment of the High Court and remanding the case to the
H High Court to hear the Writ Petition on merits,
252
F. JOHN v. DIRECTOR OF EDUCATION [VENKATARAMIAH, J.] 253
HELD: Any private school which receives aid from the govern-
A
ment under the Grant-in-aid Code, which is promulgated not merely
for the benefit of the management but also for the benefit of the
employees in the school for whose salary and allowances the govern-
ment was contributing from public funds under the Grant-in-aid Code
ca¬ escape from the consequences flowing from the breach of the
Code and particularly where the Director of Education who is an B
instrumentality of the State is participating in the decision making
process. [260F-G]
The High Court was wrong in upholding that the orders of the
Director of Education and of the Dispute Settlement Committee were
not amenable to the jurisdiction of the High Court under Article 226 of
the Constitution oflndia. [260G] c
Tika Ram v. Mundikota Shikshan Prasarak Manda/ & Ors.,
[1985] I SCR 339, referred to.
CIVIL APPEALLATE JURISDICTION: Civil Appeal No. O
3586 of 1988.
From the Judgments and Orders dated 18.8.1987 & 9.11.1987 of
the Goa High Court in W.P. No. 92/1986 & Misc. Civil Application
No. 334 of 1987.
E
Dr. R.S. Kulkarni, S.K. Mehta, Aman Vachher and Atul Nanda
for the Appellant.
K.N. Bhat and Mukul Mudgal for the Respondents.
The Judgment of the Court was delivered by F
VENKATARAMIAH, CJ. The appellant was appointed as a
Headmaster of a school which was being run by the Calangute Don
Bosco Educational & Welfare Foundation in 1974 in the State of Goa
(which was at the relevant time a Union Territory). Disciplinary pro-
ceedings were started against him in accordance with the Grant-in-aid G
Code which was in force at that time, since the school was a recipient
of the grant as per the Code. The findings of the Dispute Settlement
Committee were approved by the director of Education of the Govern-
ment of Goa by his Order dated July 12, 1984 who permitted the
termination of the services of the appellant. The Principal of the Don
Bosco High School, therefore, terminated the services of the appellant H
254 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.
as Headmaster by his letter dated July 26, 1984 and the said order of
A termination was challenged by the appellant before the High Court of
Bombay, Panaji Bench, Goa in Writ Petition No. 92 of 1986. The
petition was dismissed by the High Court on the ground that the peti-
tion was not maintainable under Article 226 of the Constitution of
India against the Management of the school, which was a private body.
B Aggrieved by the decision of the High Court the appellant has filed
this appeal by special leave.
The school in question was a private school and was a recipient
of the grant-in-aid under the Grant-in-aid Code issued by the Govern-
ment in exercise of its executive power. The relevant rule of the Grant-
in-aid Code, i.e., rule 74.2 on which the Managemeny'relied read thus:
IC
"74.2(1). The services of an employee appointed to a per-
manent post shall not be terminated except in accordance
with the procedure prescribed hereinunder. No order of
termination, dismissal or imposition of any other penalty
D shall be passed against such employee unless he has been
informed in writii;ig of the grounds on which action is pro-
posed to be taken and has been given an adequate
opportunity to defend himself. The grounds on which the
action is proposed to be taken shall be reduced to a form of
a specific charge/charges which shall be communicated to
the employee together with statement of allegation on
which each charge is based.
(iii) Management shall refer the case to the Director
of Education in writing, stating the date of the effect of the
intended termination with a copy endorsed to the employee
concerned for his acknowledgement. The letter endorsed
to the employee shall enclose a copy of allegation with
complet~ substantiating evidence and other documents
relevant to the case. The letter be issued to the employee at
least one calendar month prior to the date of effect of
intended termination. The issue of the letter shall be sub-
ject to rule 74.1(3).
(v) The Director shall refer the case to the Disputes
Settlement Committee within seven days of the receipt of
the letter in the Directorate of Education. The Disputes
1-1 Settlement Committee shall give a hearing to both the
F. JOHN v. DIRECTOR OF EDUCATION IVENKATARAMIAH, J.] 255
parties and also consider the written statements, if any,
A
submitted by either or both the parties, and give its deci-
sion w'.thin fifteen days from the date of reference. In case
any party fails to present the case, the Disputes Settlement
Committee shall take an ex parte decision .
. (vi) The decision of the Dispute settlement Commit- B
tee shall be final and binding on both the parties provided
that it shall be open to either party to prefer an appeal to
the Administrative Tribunal established under the Goa,
Daman and Diu Administrative Tribunal Act, 1965 within
thirty days of the date of receipt of the decision of the
Disputes Settlement Committee."
c
Rule 74.2 provides that the service of an employee appointed to
a permanent post shall not be terminated except in accordance with
the procedure prescribed thereunder and no order of termination,
· dismissal or imposition of any other penalty shall be passed against
such employee unless he has been informed in writing of the grounds D
on which action is proposed to be taken and has been given an
adequate opportunity to defend himself. The grounds on which the
action is proposed to be taken shall be reduced to a form of a specific,
charge/charges which shall be communicated to the employee togethei
with statement of allegation on which each charge is based. Then the
Management is required to refer the case to the Director of Education E
in writing, stating the date of the effect of the intended termination
with a copy endorsed to the employee concerned for his acknowledge-
ment. The letter endorsed to the employee shall enclose a copy of
allegation with complete substantiating evidence and other documents
relevant to the case. The letter shall be issued to the employee at least
one calendar month prior to the date of effect of intended termination. F
The .issue of the letter shall be subject to rule 74.1(3). The Director is
then required to refer the case to the Disputes Settlement Oommittee
within seven days of the receipt of the letter in the Directorate.· of
Education. The Dispute Settlement Committee shall give a hearing to
both the parties and also consider the written statements, if any, sub-
mitted by either or both the parties, and give its decision within fifteen G
days from the date of reference. In case any party fails to present the
case, the Disputes Settlement Committee shall take an ex parte deci-
sion. The decision of the Dispute Settlement Committee shall be final
and binding on the parties. The Dispute Se'ttlement Committe~
acquires the jurisdiction to hear the case only on a reference made to it
by the Director of Educ_ation. The orde_r passed in this case by the H
256 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.
A Director of Education on July 12, 1984 reads thus:
"No. DE/Acad. I/BEZ. Bo/40/DBHS/Term.
Serv. HMMol. IIl/82
Government of Goa, Daman and Diu, Directorate of
B Education,
Panaji-Goa. I
'
I
Dated: 12.7.1984.
Read: 1. This office order No. DE/Acad. l/BEZ-Bo/40/
DBHS/PC15/Term. Serv. HMNol.III/82 3610,
c dt. 3.9.1982.
2. Letter No. 171-5-82-AE/1115 dt. 26.3.1983 from
the Convenor of the Dispute Settlement Com-
mittee and Asstt. Director of Education.
D
ORDER
Whereas a Dispute Settlement Committee was con-
stituted to enquire into the proposed case for Termination
of Services of Shri Francis John, the Headmaster of Don
E Bosco High School, Calangute, Bardez, Goa, vide order
referred to above;
And whereas the accused Shri F. John participated in
the deliberations of the Dispute Settlement Committee
along with his nominee for some time and thereafter
F remained absent from the deliberation of the Committee
inspite of all reasonable opportunities given to him by the
Convenor;
And whereas the said Committee, in majority, has
decided that the termination of services of the said Shri
G F. John, Headmaster of Don Bosco High School, Calan-
gute, is justifiable.
The undersigned is inclined to agree with the findings
of the Dispute Settlement Committee and it is hereby
ordered that the finding of the majority report of the Com-
H mittee is accepted and the Principal of the School' is permit-
F. JOHN v. DIRECTOR OF EDUCATION (VENKATARAMIAH, J.] 257
ted to terminate the service of Shri F. John, as per Rule 74
(amended) of the Grant-in-aid Code and the vacancy so A
caused be filled up as per Rules. The Principal is further
directed to revoke the order of suspension forthwith under
intimation to the undersigned .
•
Sd/- L. Khisngte If
Director of Education.''
>
It was on the basis of the approval given by the Director of
Education, as stated above, the services of the appellant were
terminated.
From a reading of the relevant rule of the Grant-in-aid Code c
which is a part of the Public Law oi the land it becomes obvious that
the reference of the dispute between the Management of the school
and the appellant to the Dispute Settlement Committee was made by
the Director of Education in exercise of the powers. conferred on him
by the Grant-in-aid Code, which is issued by the Government in exer- D
cise of its executive power, even though it may not have been done
under a statute. The Director of Education who is a public functionary
has given his approval to the decision of the Dispute Settlement Com-
mittee before it was communicated to the School. While granting his
aproval to the decision the Director of Education is discharging a
governmental function as an authority constituted for the said purpose E
by the Government. It is obvious that the Management, in the
circumstances could not have terminated the services of the appellant
without the communication received by it from the Director of Educa-
tion. In such circumstances it cannot be said that the decision is that of
a just private management governed by private law. It is the part of the
process of the public law which affects publiic exchequer. F
When the matter came up before the High Court a preliminary
objection was taken by the Management regarding the maintainability
of the Writ Petition under Article 226 of the Constitution.
The appellant contended in the Writ Petition that the proceed- G
ings of the disciplinary Committee are in contravention of the principle
of natural justice and fair play and the approval given by the Director
of Education was unsustainable. The appellant relied upon the deci-
sion of this Court in Tika Ram v. Mundikota Shikshan Prasarak
Manda/ & Ors., [1985] 1 SCR 339 and contended that he was not
asking for any relief against the private body but he was challenging H
258 SUPREME COURT REPORTS I1989] Supp. 2 S.C.R.
the order of the Director of Education who had granted 'approval to his
A · removal on the basis of a report submitted to him by the Dispute
Settlement Committee and hence the Director of Education, who was
a public authority and whose orders had been questioned before the
Court was amenable to the jurisdiction of the High Court under Arti-
cle 226 of the Constitution. The High Court distinguished the 'above
B case by observing ii) Para 11 of its judgment thus:
" ... Mr. Kakodkar had placed reliance on Tika Ram v.
Mundikota Shiksha Prasarak Manda/, AIR 1984 SC 1621 in
support of liis proposition that a writ petition would be
maintanable in the case of a Headmaster of a private school
who is dismissed by the management of a private school. In
c Tika Ram's case, the petitioner was not seeking any relief
against-tt{e management on the basis of the clauses in the
Schools Code. But the Court has observed:
'In the instant case the appellant is seeking a relief
D not against a private body but against an officer of
Government who is always amenable to the jurisdic-
tion of the Court.'
Obviously, no decision of an Officer of the Government is
being challenged in the present case and hence, Tika Ram's
E case is easily distinguishable."
With great respect to the High Court we should say that we do
not find any substantial difference at all between the facts of this case
and the facts involved in the Tika Ram's case (supra). In Tika Ram's
case (supra) the facts were these.
F
The appellant in that case was also working as a Headmaser in a
private school. On account of certain earlier events the Management
instituted a disciplinary enquiry against the appellant and on July 7,
1975, the appellant was informed by the Management that it had
imposed on him the punishment of reversion to the post of Assistant
G Teacher which according to the Management was the substantive post
held by him. Aggrieved by that order of reversion, the appellant filed
an appeal before the Deputy Director of Education, Nagpur Division,
contending that the enquiry had been vitiated on account of violation
of principles of natural justice and that he had never held the post of
an Assistant Teacher to which he had been reverted. After hearing
H both the parties, the Deputy Director of Education passed an order
F. JOHN v. DIRECTOR OF EDUCATION (VENKATARAMIAH, J.J 259
dated October 3, 1975 setting aside the decision of the Management
and remanding the case to the Management for fresh decision on the A
ground that the enquiry had been. vitiated on account of violation of
principles of natural justice. Instead of filing an appeal against that
order, the Management filed a review petition before the Deputy
Director. himself on October 17, 1975. That was rejected by the
Deputy Director by his order dated November 11, 1975 on the ground B
that no such review could be filed b~fore him. Against that order the
Management filed an appeal before the Director of Education and that
was dismissed on May .12, 1976 affirming the order of remand passed
by the Deputy Director of Education to reconsider the case. The
Management again filed a petition before the Director of Education to ·
reconsider the case. This petition for review was allowed by the
Director of Education on November 26, 1976 and the order passed by c
the Deputy Director on October 3, 1975 remanding the case to the
Management for a fresh decision was set aside. Aggrieved by the said
order dated November 26, 1976, the appellant filed a writ petition
before the High Court of Bombay on the principal ground that the
Director had· no jurisdiction to review his earlier order May 12, 1976 D
by which he had dismissed the appeal against the order of the Deputy
Director. The High Court dismissed that writ petition holding that the
appellant could not file a writ petition under Article 226 of the Con-
stitution against the order passed by the Director on the ground that
the teachers working in private schools could not enforce their right
under clause 77 and con.nected clauses of the School Code which were .not E
statutory rules. !twas against that~order the appellant in that case had
filed the appeal before the Supreme Court under Article 136 of the
Constitution. Allowing the said appeal this Court observed thus:
"In the writ petition the appellant was not seeking any
relief directly against the management on the basis of the F
clauses in the School Code. If the management does not
obey the order passed by the Deputy Director or the
Director, it is open to the State Government to take such
action under the School Code as may be permissible. In
such an event, the recognition accorded to the school may be
withdrawn or the grant-in-aid may be stopped. In the G
instant case the appellant is seking a relief not against a
private body but againsi an officer of Government who· is
always amenable to the jurisdiction of the Court. The
appellant has merely sought the quashing of the impugned
order dated November 26, 1976 passed by the Director on
review setting aside the order of the Deputy Director. What H
260 SUPREME COURT REPORTS [1989] Supp. 2 S.C.R.
A consequences follow from the quashing of the above said
order in so far as the management is concerned is an en-
tirely different issue. In the circumstances, the High Court
was wrong in holding that a petition under Article 226 of
the Constitution did not lie against the impugned order
passed by the director. We are aware of some of the deci-
B
sions in which it is observed that no teacher could enforce a
right under the School Code which is non-statutory in
character against the management. But since this petition is
principally directed against the order passed in a quasi-
judicial proceeding by the Director, though in a case aris-
ing under the School Code and since the Director had
c assumed a jurisdiction to review his own orders not confer-
red on him, we hold that the' appellant was entitled to main-
tain the petition under Article 226 of the Consti,tution."
In the instant case also we are concerned with the Grant-in-aid
D
Code. The decision which was challenged before the High Court was
the order of the Director of Education dated July 12, 1984 which is
fully extracted above. It is further seen that a copy of the above order
has been communicated by the Director of Education not merely to
the Management of the School but also to the Zonal Officer, North
Education Zone, Mapsa and the Grant-in-aid Section of the Directo.
E '.-
rate of Education. If the impugned orders of the director of Education
and of the Dispute Settlement Committee to which he had referred the
case are set aside then the order of termination of service of the appel-
lant, which is pursuant to them would also have to fall. Any private
school which receives aid from the Government under the Grant-in-
aid Code, which is promulgated not merely for the benefit of the
F
Management but also for the benefit of the employees in the School
for whose salary and allowances the Government was contributing
from the public funds under the Grant-in-aid Code cannot escape from
the consequences flowing from the breach of the Code and particularly
where the Director of Education who is an instrumentality of the State
is participating in the decision Jnaking process. Under these circum-
G
stancc;s we find that the High Court was wrong in upholding that the
orders of the Director of Education and of the Dispute Settlement
Committee were not amenable to the jurisdiction of the High Court
under Article 226 of the Constitution since the matter squarely falls
within the principles laid down by this Court in Tika Ram's case
H (supra).
F. JOHN v. DIRECTOR OF EDUCATION [VENKATARAMIAH, J.] 261
We, therefore, set aside the judgment of the High Court holding A
that the writ petition was not maintainable before it. Since the Higb
Court has not gone into the merits of the ca.se we remand the case to
the High Court and direct it to hear the writ petition on merits in
accordance with law. The appeal is accordingly allowed, but there
shall be no order as to costs.
B
R.N.J. Appeal allowed.
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