FR. BALTHAZAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The unsuccessful plaintiff in O. S. No. 52 of 1965 Sub Court, Kottayam has filed this appeal. His suit was for arrears of pay and allowances due to him from 1-6-1953 till 31-3-1961 at the rates and figures detailed for the relevant periods in the plaint. The total claim is for Rupees 17,164.47. The plaintiff is a Carmalite priest, a B. A. L. T. who was the Headmaster of the C. C. Memorial High School. Karikattur under the Corporate Management of the Carmelite order on a salary of Rs. 150/- and an allowance of 22-8-0 per month. While thus serving as Headmaster, he was transferred by Ext. P-2 order dated 20-5-1953 as Headmaster of the St. Paul's High School. Valiakumaramangalam, under the Corporate Management of the Palai Diocese. This latter school was an incomplete High School. Both the schools were then governed by the Private Secondary Schools Scheme (referred to as the P. S. S. Scheme), formulated by the Travancore Cochin Government. It is agreed that the transfer required previous sanction of the educational authorities under the provisions of the scheme. Exts. P-3 to P-8 are the letters exchanged between the Management, and the educational authorities relating to the approval of the transfer. Eventually by Ex. P-1 proceedings dated 30-3-1954 of the Director of Public Instruction, the transfer was approved. It was pointed out that it should not have been effected without prior approval of the Department and that the appellant cannot draw the Headmaster's salary in the St. Paul's High School. The transfer was to take effect on a salary scale of Rs. 45-150, the exact salary to be fixed in that scale. Ext. D-10 dated 7-4-1955 is the Manager's Report showing the change of staff of the St. Paul's High School.

(2.) The petitioner's designation is shown as Headmaster, his pay scale as Rs. 45-150. and the pay drawn as Rs. 60/- per mensem. Ext. D-11 dated 11-10-1955 is the supplemental staff salary statement, which shows that the petitioner's salary had been fixed at Rs. 75/-. It was said by Counsel that there was a proposal for the Carmelite order to take over the St. Paul's High School, and that the petitioners transfer was made in anticipation of this take over. But there is nothing on record to show that this materialised. On 6-6-1955 the St. Paul's High School became a full or complete High School. Ext. D-19 dated 14-10-1955 is a communication from the Secretary of the Corporate Management of the school to the District Educational Officer requesting approval of the appellant's appointment as the Headmaster with all privileges and emoluments attached to the post. Certain queries followed from the Director of Public Instruction (See Ext. P-15 dated 6-4-1957), as to whether the appellant was the senior-most among the teachers etc. By Ext. D-3 dated 25-5-1958 the authorities were informed that he was. We then see that by Ext. D-12 dated 4-9-58, the appellant accepted a new appointment order as High School Assistant on a salary of Rs. 82.50 and an allowance of Rs. 33/- per mensem from 6-6-1955. Ext.D-12 is signed by the appellant, the Secretary and the Correspondent of the Corporate Management, and by the District Educational Officer who is seen to have approved the appointment. Then followed Ext. D-13 report on the change of staff consequent on Ext. D-12. Ext. D-18 dated 10-9-1958 is a memorandum from the office of the Director of Public Instruction to the District Educational Officer, who forwarded a copy of the same to the Corporate Management, according sanction to the appellant's appointment as High School Assistant and stating that no Headmaster's allowance need be released to the appellant until further orders. Next we see Ext. D-4 memo dated 27-2-1961 from the Assistant Secretary, Education Department of the Government to the District Educational Officer, Palai requesting certain information in connection with the fixation of pay of the appellant. It was pointed out that the transfer of the appellant from a Higher substantive post in the C. C. M. H. S. Karikattur to the St. Paul's High School was irregular. Explanation for the same was called for. Various other particulars were also called for. Ext. D-5 dated 4-3-1961 is the reply of the District Educational Officer to Ext.D-4. It was pointed out that the transfer had been ratified by Ext. P-l order dated 20-3-1954 and that the appellant's posting was not a reversion. The other particulars demanded were also clarified. Ext.D-6 dated. 22-4-1961 from the District Educational Officer stated that on account of his transfer the appellant became the juniormost among the High School Assistants in the schools under the Corporate Management of the Palai Diocese; and that as the appellant was not eligible for the Headmaster's scale of pay, his appointment as High School Assistant in charge as Headmaster, without any Headmaster's allowance, was approved from 6-6-1955 as per the Director of Public Instruction's memo dated 10-9-1958 (reference is to Ext. D-18). Exts. D-7 dated 12-7-1961, and D-8 dated 4-9-1961 are copies of the appellant's representations to the Educational authorities or to the Government, in respect of his salary fixation. By Ext. D-9 dated 19-9-1961 the District Educational Officer, adverting to the petitioner's representation regarding pay fixation (forwarded to the District Educational Officer) recommended that his pay may be fixed in the Headmaster's scale of Rs. 150-250 with effect from 6-6-1955 and that he may be allowed the benefit of the Headmaster's allowance of Rs. 20/- per mensem, from 1-6-1953 to 5-6-1955. Ext. P-17 is the memo from the Government stating that Ext. D-7 petition had been forwarded to the Director of Public Instruction for remarks. Ext.D-20 dated 2-2-1962 is the letter of the District Educational Officer to the Regional Deputy Director of Public Instruction, Ernakulam regarding the pay fixation of the petitioner. It was pointed out that the Manager's request to approve the appoinment of the appellant as Headmaster in the scale of Rs. 150-250 was rejected on the ground that there would be High Schoool Assistants senior to the petitioner having a better claim for the post of Headmaster. Reference was made to Ex.D-18 proceedings of the Director of Public Instruction. It was again recommended that the petitioner may be allowed the Headmaster's scale of pay from 6-6-1955. Next in sequence is Ext. P-16 dated 30-6- 1964 which is the petition by the appellant to the Minister of Education. It refers to his representations Exts. D-7 and D-8, and prays for a decision thereon. The appellant was informed by Ext. D-21 memo of the Director of Public Instruction that orders had already been issued by the proceedings cited therein dated 4-5-1964, to the District Educational Officer, Palai rejecting the petitioner's request. We have traced the events relating to the appellant's case in so far as the same can be gathered chronologically from the Exhibits and the records filed in the case. On these facts it appears to us that the appellant's claim is legally unsustainable, and should also fail on the merits. The State of Kerala alone has been made a party to the suit; and nothing said by the Appellant's Counsel has persuaded us to hold that there was any sort of legal obligation on the State to defray the arrears of salary and allowances to the appellant for the period of his claim. Counsel for the appellant relied on the P. S. S. Scheme and contended that the same was a 'law' and that there was a legal obligation on the part of the State to pay the salary and allowance to the petitioner. We are unable to agree. The P. S. S. Scheme has not been framed under the provisions of any statute or statutory regulation. It is merely a set of administrative instructions. It has been so ruled in a series of decisions of this Court. These decisions have also held that under the provisions of the Scheme the State has undertaken no sort of legal obligation towards the teachers in the matter of payment of salary or otherwise, and that there was nothing in the scheme that brings the teachers into direct legal relationship with the State or its Officers. It was so ruled by a learned Judge of the Travancore-Cochin High Court in E. P. John v. State,1957 AIR(TravCo) 265. This decision was followed by a learned Judge of this Court in Bhavani v. Bhanu, 1960 AIR(Ker) 133. It was ruled therein that the teacher's contract was with the Management and there was no sort of legal relationship with the Government or the State. In O. P. No. 162 of 1956 decided by the Travancore Cochin High Court, a learned Judge again observed that the P. S. S. Scheme embodies only a set of administrative instructions. That ruling was followed by a Division Bench of this Court in O. P. No. 349 of 1957. We are in agreement with the principle of the above decisions, and hold that no legal relationship was constituted between the appellant and the State and its Officers under the P. S. S. Scheme, nor any obligation enjoined on them to pay the appellant's salary.

(3.) Counsel for the appellant relied on Rai Sahib Ram Jawaya Kapur v. State of Punjab, 1955 AIR(SC) 549 and Jayanthilal Amrit Lal Shodhan v. F. N. Rana, 1964 AIR(SC) 648 The first of these was concerned only with defining, and laying down the limits of, executive power. It was held that in exercise of its executive power the State Government could undertake the work of printing and publishing text boks even in the absence of a legislation on the subject by the State, and that so long as appropriation of funds needed for the purpose from the State Exchequer was sanctioned by the Appropriation Acts passed by the Legislature, the same would be beyond challenge. The decision has no application except for the limited purpose of establishing that the P.S. S. Scheme could be justified in exercise of executive power. In Jayanthilal's case, 1964 AIR(SC) 648 the question that pointedly arose for consideration was whether a notification issued by the President under Art. 258 of the Constitution authorising certain land acquisition proceedings, was a 'law', within the meaning of Section 87 read with Section 2-D of the Bombay State Reorganisation Act 1960. Section 87 provided for maintaining the territorial extent of laws before the appointed day, and Section 2-D defined the expression "law" as including any enactment, Ordinance, notification etc. Having regard to the statutory definition and to the fact that the notification in question had been issued in exercise of the powers conferred by Article 258 of the Constitution it was ruled by the Supreme Court that the said notification was a 'law', under Section 87 of the Bombay Reorganisation Act, and not one promulgated in exercise of executive power. No such definition of 'law' as was contained in Section 2-D of the Bombay Reorganisation Act, is available to the appellant in this case. Nor can the P. S. S. Scheme be traced to any statutory source or to any constituent power as in the case of the notification considered by the Supreme Court in Jayanthilal's case. We are unable to accept the appellant's argument that the P. S. S. Scheme is a 'law'.