Holding

The Karnataka Private Educational Institutions (Discipline & Control) Rules do not require approval of the Head of Department for regular appointments, non‑statutory Rule 16 does not invalidate such appointments, and there is no provision for automatic termination for unauthorised absence; therefore the termination was unlawful.

Summary

The appellants, appointed as assistant teachers in a private government‑aided school, were terminated on the ground of unauthorised absence and alleged lack of approval of their appointments by the Director of Public Instructions. They challenged the termination before the Tribunal, which ordered reinstatement; the management appealed to the High Court, which upheld the termination, holding that approval under the non‑statutory Grant‑in‑Aid Code was required. On appeal, the Supreme Court examined whether the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 and its Rules mandated such approval, and whether breach of the non‑statutory Rule 16 could invalidate the appointments. The Court held that the Rules do not require approval of the Head of Department for regular appointments made by a selection committee, and that Rule 16, being non‑statutory, does not affect the validity of appointments. It further observed that neither the Act nor the Rules provide for automatic termination of service for unauthorised absence, and any termination must follow the statutory procedure and principles of natural justice. Consequently, the termination was unlawful, the appeals were allowed, and the appellants were entitled to arrears of salary for the last three years.

Issues considered

Whether the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 and its Rules require the management to obtain approval of the Head of Department (Director of Public Instructions) for regular appointments of teachers.
Whether breach of non‑statutory Rule 16 of the Grant‑in‑Aid Code for Secondary Schools renders the appointments of the teachers invalid.
Whether the Act or Rules provide for automatic termination of a teacher’s service on account of absence without leave.
Whether teachers appointed on probation become regular teachers upon expiry of the probationary period.
Whether the appellants are entitled to arrears of salary for the period during which they were not paid.

Subjects

Service lawAppointment of teachersPrivate aided schoolKarnataka Private Educational Institutions ActTermination of serviceNon‑statutory ruleGrant‑in‑Aid CodeNatural justiceProbationary appointmentArrears of salary

Judgment

LAXMAN DUNDAPPA DHAMONEKAR AND ANR. A
v.
MANAGEMENT OF VISHWA BHARATA SEVA SAMITI AND ANR.

SEPTEMBER 27, 2001

[V.N. KHARE AND B.N. AGRAWAL, JJ.] B

Service Law :

Kamataka Private Educational Institutions (Discipline and Control) Act,
1975/Rules 1978-Sections 3 and 15/Rule 6(2).
c
Grant-in-Aid Code for Secondary Schools-Teachers-Termination of
service-On the ground of absence without leave and non-approval of
appointment-Plea that approval required u/r 16 ofthe Code-Held, tennination
not justified-Rules do not contemplate for obtaining approval-Breach of
non-statutory Rule 16 would not render the appointments invalid-Act or Rules D
do not provide for automatic termination of service on acc.:mnt of being absent
without leave.

The services of appellants who were recommended by SelP.ction
Committee and appointed as Assistant Teachers, were terminated. They
filed appeals before the Tribunal under Karnataka Private Educational E
Institutions, (Discipline and Control) Act, 1975 which directed their
reinstatement. Against the order of the Tribunal the Management-
respondent tiled Revision Petition before High Court contending therein
that the services of Appellant No.1 was terminated because he remained
absent for a particular period and because there was non-approval of his F
appointment which was on probation subject to the approval of Director of ·
Public Institutions. High Court allowed the petition.

In appeal to this Court, appellants contended that there being no
requfrement either under the Act or Karnat~ka Private Educational
Institutions (Discipline and Control) Rules, 1978 for the management to G
obtain approval of the Head of the Department in respect of the
appointments of the appellants their services could not have been
terminated; and that the method of appointment and condition of service
of teachers is Government aided institutions being governed by the
provisions of the Act and the Rules, any requirement of approval of regular H
379
380 SUPREME COURT REPORTS [2001) SUPP. 3 S.C.R.
A appointments of teachers under the non-statutory administrative orders
contained in Grant-in-Aid Code would not make the appointment of
appellants invalid; and that there being no provision under the rules on
automatic termination of service in the event of teachers being absent,
such termination of service of appellants is illegal.
B Respondents contended that grant~in-aid, though administrative in
nature, provides for requirement of approval of the inspecting officer in
the matter of appointment of teachers in the Government aided institutions
and in the absence of such approval the appointment of the appellants was
nullity; and that even if tbe rules did not provide for obtaining of approval
c of the Head of the Department, in case of appointment of regular teacher,
the same is required under non-statutory Rule 16 of the Grant-in-Aid
Code for Secondary Schools.

Allowing the appeals, the Court

D HELD : 1.1. The Karnataka Private Educational Institutions
(Discipline & Control) Rules do not contemplate for obtaining approval of
the Head of the Department i.e. the Director of Public Instructions
where the appointment is -to be made on the basis of the recommendation
of Selection Committee constituted under sub-rules (2) of rule 6 of the
Rules. [385-E; F]
E
1.2. The arpointment and conditions of service of teachers in private
government aided institution are governed by the provisions of the Act and
the statutory Rules. The said provisions are self contained code relating to
the appointments of teachers in private aided institutions. The field relating
F to method of appointment of regular teachers in a government aided
. institution is. fully covered by the provisions of the Act and the Rules and
there is no provisions in the Act empowering the Government to supplement
the Rules by executive instructions. It is no doubt true that if the Act had
empowered the State Government to issue administrative instructions by
way of supplementing the rules, the position would be different. In such a
G case.z. the Government would have power to fill up the gaps in the Rules by
issuing administrative instructions if the Rules are silent on the subject
provided the same is not inconsistent with the statutory rules already
framed. In the present case, the Act does not empower the State Government
to supplement the rules by issuing administrative instructions or orders. In
H the absence of such provision in the Act, it is not open to the government to
L. D. DHAMONEKAR v. MANAGEMENT OF VISHWA BHARATA SEVA SAMITT [KHARE, J.) 381
supplement the Rules by executive orders. [385-H; 386-A-C] A
1.3. Breach of non-statutory rule 16 would not render the
appointments of appellant invalid. Non-statutory Rule 16 was never
intended to supplement the statutory Rules and, therefore, not applicable
in the case of appointment of teacher in private government aided
institutions. Breach of conditions of the grant-in-aid would not make the B
appointment of a teacher in the institutions invalid, when the method of
appointment of teachers in the institution is fully covered by the Act and
the statutory rules. It is, however, true that for breach of administrative
instructions which have no statutory force, a public servant or the person
guilty of such a breach can be subject to disciplinary action; but the same C
cannot be pre;sed into service for action which has the effect of modifying
the statutory rules. [388-A; C; DJ

2. There is no provision either in the Act or the Rules providing for
automatic termination of services of a teacher on account of being absent
--~ without leave. If any teacher remains absent without any leave, it is open to D
the Management to terminate the services of such teachers only after
complying with the provisions of the Act and the Rules or principles of
natural justice. In the present case, there is no provision either in the Act
or rules providing for automatic termination of service of a teacher in the
event of a teacher remaining absent without leave. In the absence ofsuch a E
provision in the Act or Rules, the alleged deemed termination of services of
the appellants without giving any opportunity to the appellants was unlawful
and deserves to be set aside. [388-F; G; HJ

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6778-6779 of
2001. F
From the Jtidgment and Order dated 29.11.99 of the Karnataka High
Court in C.R.P. No. 2267 and 2268 of 1997.

Ms. Kiran Suri for the Appellants.

S.N. Bhat for the Respondents. G

The Judgment of the Court delivered by

V.N. KHARE, J. Leave granted.

There is an organisation known as Vishwa Bharata Seva Samithi H

r
382 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A (hereinafter referred to as the 'Samithi'). The Samithi is running a Higher
Secondary School (hereinafter referred to as the 'Institution') in the town of
Belgaum, Karanataka. The institution is imparting education upto higher
secondary level. The institution is a private government aided school, recognised
by the Government of Karnataka. The method of appointment and condition
of services of the teachers and employees working in the institutions are
B
governed by the Karnataka Private Educational Institutions (Discipline and
Control) Act, 1975 (hereinafter referred to as 'the Act') and the Rules framed
thereunder known as the Karnataka Private Educational Institutions (Discipline
and Control) Rules, 1978 (hereinafter referred to as 'the Rules'). In the year
1984, a post of Assistant Teacher in the institution fell vacant. The Management
c of the institution advertised the said vacancy and invited applications for
appointment to the said post. Appellant No. 1, and others, iIJ. response to the
said advertisement submitted applications and for that purpose a Selection
Committee was constituted in accordance with the provisions of the Act and
the Rules framed thereunder. Appellant No. 1 was selected and recommended
D by the Selection Committee for appointment as Assistant Teacher. The
Management, by a resolution dated 24.6.85, resolved to aBpoint appellant No.
1 on probation for a period of one year. Consequently, appellant No. 1 joined
the service at Madhyamika Vidyalaya Mattiwade w.e.f 1.7.85 on a pay scale
of Rs. 750/- to Rs. 1,500/-. It is alleged that appellant No. 1 continued to teach
till June 1994 when he was prevented by the Management of the School from
E performing his teaching assignment. Similarly, appellant No. 2 after having
been selected by the Selection Committee constituted under the provisions of
the rules was appointed as Assistant Teacher in the institution on probation for
a period of one year. It is alleged that appellant No. 2 continued to work, but
subsequently he was also prevented from performing his teaching duties. In
F such circumstances, the appellants herein, preferred separate appeals before the
Tribunal constituted under the Act. The Tribunal allowed both the appeals and
directed for reinstatement of the appellants. Aggrieved, the Management filed
two Civil Revision Petitions before the High Court of Karnataka. The case of
the Management, inter alia, was that, since appellant No. 1 was absent from
25.11.1991 to l.6~1992, l.7.92 to 6.7.92, 27.7.92 to 27.7.92, 3.8.92 to 14.8.92
G and thereafter from i5.8.92 onwards remained absent and, as such, the services
of the appellant stood automatically terminated and that the appellant was
appointed on probation subject to the approval of Director of Public Instructions,
Belgaum and there being no approval to the appointments, the appellants have
ceased to be teacher in the institution. However, the case of the appellants
before the High Court was that they were appointed on probation and after the
L. D. DHAMONEKAR "· MANAGEMENT OF VISHWA BHARATA SEVA SAMm [KHARE. J.) 383
expiry of the probationary period, they automatically became regular teachers A
and since no order of termination having been passed in accordance with the
provisio,ns of the A~t and Rules framed thereunder, the action of the Management
in not permitting the appellants to perform their duties was wholly illegal and
arbitrary. It was also their case that there being no provision either under the
Act or the Rules for obtaining approval for appointment as Assistant Teacher,
B
the appointments of the appellants were in accordance with law. The High
Court was of the view that since the Management did not obtain the approval
of the concerned Inspecting Officer in regard to appointments of the appellants
as Assistant Teacher, the appellants have ceased to be teacher in the institution.
In that view of the matter, the Civil Revision Petitions filed by the Management
were allowei:l an,d the order of the Tribunal was set aside. It is against the said c
judgment and order of the High Court, the appellants have preferred these
appeals by way of Special Leave Petitio~s.

Learned counsel appearing for the appellants urged, firstly, that there
being no requirement either under the Act or Rules for the Management to
obtain approval of th_e Head of the Department in respect of the appointments D
of the appellants as Assistant Teacher in the institution, the view taken by the
High Court is erroneous. Secondly, that the method of appointment and
conditions of service of teachers in private government aided institution being
governed by the provisions of the Act and Rules framed thereunder, any .
requirement of approval of regular appointments of teachers under the non- E
statutory administrative orders contained in grant-in-aid code would not make
the appointments of the appellants invalid. Thirdly, that the appellants having
been appointed on probation, the appellants automatically became confirmed
teachers of the institution after completion of their probationary period and
fourthly, that, in any case, there being no provision under the Rules for automatic
F
termination of service in the event of the teacher being absent, the alleged
automatic termination of service of the appellants is illegal.

Whereas, learned counsel appearing for the respondent urged that the
grant-in-aid rules, though may be administrati:ve in nature, it provides for
requirement of obtaining approval of the Inspecting Officer in the matter of G
appointment of teachers in the government aided institutions and in the absence
of such approval, the appointment of the appellants was nullity and they were
not entitled to continue in service.

On the argument of learned counsel for the parties, the first question that
arises for consideration is whether there was any requirement of law for the H
384 SUPREME COURT REPORTS [2001) SUPP. 3 S.C.R.
A Management to obtain approval in regard to appointment of teachers in the
institution ..section 3 of the Act provides that subject to other provisions of the
Act, the State Government, after previous publication of the rules may, by
notification, make rules in respect of matters relating to the code of conduct
and conditions of service of employees. Sub-section (3) thereof provides that
every private government aided institution shall send intimation of having
B
adopted the model rules or modified its rules consistent with the rules framed
by the State government to the Director of Technical Education or to an Officer
not below the rank of a District Deputy Director of Public Instructions. Sub-
section (4) of Section 3 further provides that where a private educational
institution fails to take action as required, the rules as framed by the State
c government shall be deemed to have been adopted by such institution and they
shall be the rules governing its employees. Section 6 provides for termination
of service and procedure for imposing penalties. Section 15 provides that the
State Government may by notification and after previous publication, make
rules to carry out the purposes of this Act.
D In exercise of power conferred by Sections 3 and 15 of the Act, the
Government of Karnataka has framed the rules. Rule 6 provides method of
recruitment. It would be appropriate to reproduce rule 6 of the Rules which
runs as under:

"6. Method of recruitment. - ( 1) Any appointment arising for a period
E
of more than three months in any institution shall be made by selection
from among persons who had applied in pursuance of an advertisement
in news papers:

Provided that an employee in one institution may be appointed
F in another institution under the same or different Management in
accordance with rules approved by Government in respect of each
category of institution.

(2) For the purpose of recruitment under sub-rule (1) the Board of
management shall constitute -
G ./

(a) a selection committee for appointment of the teaching and
non-teaching posts other than the post of the head of the institution
consisting of-

(i) the President or the Head of the Board of Management or
H his nominee;
L. D. DHAMONEKAR v. MANAGEMENT OF VISHWA BHARATA SEVA SAMm [KHARE, J.] 385.
(ii) the Head of the Department or his nominee; A
(iii) the Head of the Institution;

(iv) an educationist or an expert in the subject to which
recruitment is to be made, to be selected by the Board of
Management from a panel of names furnished by the Head B
of the Department.

A perusal of Rule 6 would show that there is no requirement for
Management to take any approval from the Head of the Department who is the
Director of Public Instructions, in respect of regular appointment of a teacher
selected by the Selection Committee constituted under sub-rule (2) of Rule 6 C
of the Rules. Whereas, under sub-rule (5) of Rule 6, if the Management
appoints any teacher for a period of 3 months or less, or for part time, such
an <lPPOintment is required to have the approval by the Head of the Department.
It appears that the omission to obtain approval of Head of the Department in
.... case of a regular teacher under the rules is deliberate. Reason being that the
D
Head of the Department himself or his nominee sits in the Selection Committee
·and it is because of that reason, the approval of the Head of the Department
in case of a regular appointment has been dispensed with under the rules.
Whereas, if the appointment is made on a ad hoc basis by the Management for
a period of 3 months or less, or for part time, the same is required to have the
approval of the Head of the Department apparently for the reason that the Head E
of the Department or its nominee is not party to the decision to make ad hoc
appointment in the institution. We are, therefore, of the view that the rules do
not contemplate for obtaining approval of the Head of the Department i.e. the
Director of Public Instructions where the appointment is to be made on the
basis of the recommendation of Selection Committee constituted under sub-
F
rule (2) of rule 6 of the Rules.

Learned counsel appearing for the respondent urged that even if the rules
do not provide for obtaining approval of the Head of the Department, in case
of appointment of a regular teacher, the same is required under non-statutory
rule 16 of Grant-in-Aid Code for Secondary Schools. What he argues is that ,G
even though the rules contained in the Code are non-statutory and are merely
administrative instructions, yet they supplement the rules and, therefore, any
breach of administrative or executive instruction will make the appointment of
the appellants invalid.

We noticed earlier, the appointment and conditions of service of teachers H
386 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A in private government aided institution are governed by the provisions of the
Act and the statutory rules. The said provisions are self-contained code relating
to the appointments of teachers in private aided institutiQns. The field relating
to method of appointment of regular teacher in a government aided institution
is fully covered by the provisions of the Act and the rules and we do not find
any provisions either in the Act empowering the Government to supplement
8
the rules by executive instructions. It is no doubt true that if the Act had
empowered the State Government to issue administrative instructions by way
of supplementing the rules, the position would be different. In such a case, the
Government would have power to fill up the gaps in the rules by issuing
administrative instructions if the rules are silent on the subject provided the
c same is not inconsistent with the statutory rules already framed. In the present
case, the Act does not empower the State Government to supplement the rules
by issuing administrative instructions or orders. In the absence of such provision
in the Act, it is not open to the government to supplement the rules by the
executive orders. If we accept the argument of learned counsel for the respondent,
D it would be repugnant to Sections 3 and 15 of the Act.

The matter can be examined from another angle. Rule 16 of Grant-in-
Aid Code for Secondary Schools runs as under:

"16. General Conditions of aid:- Grant-in-aid is permissible only
to those institutions which have been recognised by the
E Department. It is subject to the following conditions:-

{i) The Management shall have deposited the stability fund as
indicated in rule 9 (d) of Chapter III.

(ii ) The Management shall credit the prescribed fees collected,
F into the Treasury as prescribed in rule 69.

The other amounts collected by way of grants, donations, interest
on endowments, deposits, and other items realised by the institutions
shall be credited to the accounts of the institution and shall be reflected
in annual receipts and expenditure statement of the institution.
G
Failure on the part of the Management or the Head of the Institution
to collect and to credit the fees so collected to Government funds as
directed above, may entail stoppage of grants and withdrawal of
recognition.

H (iii) The Management shall maintain the account of the Institution
L 0. DHAMONEKAR v. MANAGEMENT OF VISHWA BHARATA SEVA SAMm [KHARE, J.] 387
and furnish monthly and other periodical returns to the Department A
in accordance with the prescribed rules.

- (iv) The Management shall get the accounts of the Institutions
audited by an auditor not connected with the management in any
way, from the list of auditors approved by the Education
Department. B

(v) The Management shall keep the accounts of the Institution
open to inspection and audit by Inspecting and other officers
deputed by the Director or by the Accountant General or by their
nominees.
c
(vi) (a) The Management shall appoint teachers and other staff of
the Ihstitution in accordance with the rules prescribed in this behalf
and shall observe the conditions of service prescribed therein.

(b) The Management shall make available the staff
members selected by the Additional Director of Examinations D
for being utilized for purposes of Public Examinations conducted
by the Department or Board. Their period of absence in all such
cases will be treated as on other duty and their salary during that
period will be admitted for grant purposes.
E
(vii) The Management shall report to and obtain the approval of
the inspecting officer concerned for all appointments and changes
made in the staff of the institution. It shall be competent for the
inspecting officer to prohibit the employment of any person who
is not duly qualified or who,.for any other reasons to be recorded
in writing, is considered unfit to be on the staff. Persons who are F
suffering from contagious 'diseases or serious physical defects
should not be appointed by the Management as teachers in
Schools. In doubtful cases a reference may be made to the
inspecting officer concerned and his instructions obtained. An
appeal against the decision of the inspecting officer shall lie with G
the next superior authority whose decision shall be final."

The aforesaid non-statutory rule was substituted in the Code by
government order dated 17 .6.67 and whereas the statutory Rules governing the
method of appointment of teacher came to be published in the gazette on.
31.1.78. It is, therefore, manifest that non-statutory Rule 16 was never intended H
388 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A to supplement the statutory Rules and, therefore, not applicable in the case of
appointment of teacher in private government aided institutions. Yet, there is

-
another reason why the non-statutory Rule 16 is not applicable in the case of
appointment of teachers in the institution. The administrative instructions
pertaining to grant-in-aid for secondary schools have been issued with the
object of extending and improving institutions, and for that purpose a sum of
B money is annually allocated by the government for distribution as grant-in-aid
to schools subject to observance to the conditions specified therein. The .......
conditions ~mbodies in Rule 16 of the grant-in-aid code provide for the conditions
under which financial assistance would be made available to the Management
of the institution by the government. If there is a breach of the conditions of
C the grants-in-aid, it is open to the government either to suspend or cancel the
financial grant to the institution. But, such breach of conditions of the grant-
in-aid code would not make the appointment of a teacher in the institutions
invalid when the method of appointment of teachers in the institution is fully
covered by the Act and the statutory rules. It is, however, true that for breach
D of administrative instructions which have no statutory force, a public servant
or the person guilty of such a breach can be subjected to disciplinary action;
but the same cannot be pressed into service for action which has the effect of
modifying the statutory rules. We are, therefore, of the view, that breach ofnon-
statutory Rule 16 would not render the appointments of appellant invalid.

E So far "the second question that arises for consideration is whether the
appellants having been appointed on probation they would be deemed to have
become regular teachers on expiry of probationary period, we are not inclined
to go into that question in view of the fact that even though the appellants were
probationers, their services could not be ceased to have effect either by non
· approval by the Head of the Department or by their remaining absent from their
F
respective duties. There is no provision either in the Act or the Rules providing
for automatic termination of services of a teacher on account of being absent
without leave. If any teacher remains absent without any leave, it is open to
the Management to terminate the services of such teachers only after complying
with the provisions of the Act and the rules or principles of natural justice. In
G the present case, we do not find any provision either in the Act or Rules
providing for automatic termination of service of a teacher in the event of a
teacher remaining absent without leave. In the absence of such a provision in
the Act or Rules, the alleged deemed termination of services of the appellants
without giving any opportunity to the appellants was unlawful and deserves to
H be set aside.
L. D. DHAMONEKAR v. MANAGEMENT OF VISHWA BHARATA SEVA SAMITI [KHARE, J.] 389
Before we part with the case, we would like to observe that we are in A
agreement with the view taken by the High Court that it is unbelievable that
the appellants were not paid their salary for the last 10 years, as at no point
of time, the appellants had made any grievance either to the Head of the
Department or to the Management in respect of non-payment of salary. If the
appellants were not paid salary, they ought to have made representation to the
B
Head of the Department or gone to a court of law for recovery of arrears of
salary which they did not do so. Therefore, they are not entitled to arrears of
salary for the last ten years. Under such circumstances, we are of the view that
the appellants are entitled to arrears of salary only for the last 3 years. In the
present case, we also find that the management was guilty of wilful default and
non-observation of Rules. Assuming there was requirement of obtaining approval c
of Head of the Department in regard to appointment of the appellants, which
the management is now contending, it does not appear to reason why management
did not take any steps for obtaining approval of the Head of the Department
and permitted the appellants to teach in the institution for long period of ten
\
years and suddenly the management treats the services of the appellants having D
automatically terminated. For such wrongful act on the part of the Management,
we direct that arrears of salary to the appellants shall be paid by the Management
from its own funds and not from the financial assistance received from the
Government.

For the aforesaid reasons, we are of the view that the appeals deserve to E
be allowed. The judgment under challenge is set aside. The appeals are
accordingly allowed. There shall be no order as to costs.

K.K.T. Appeals allowed.

F