State of Assam and Another vs Ajit Kumar Sharma and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 1062 of 1963

Decision Date: 27 October 1964

Coram: K.N. Wanchoo, P.B. Gajendragadkar, M. Hidayatullah, Raghubar Dayal, J.R. Mudholkar

In the dispute titled State of Assam and Another versus Ajit Kumar Sharma and Others, the Supreme Court of India delivered its judgment on 27 October 1964. The case was heard by a five‑judge bench comprising Justice K.N. Wanchoo, Chief Justice P.B. Gajendragadkar, Justice M. Hidayatullah, Justice Raghubar Dayal and Justice J.R. Mudholkar. The petitioner was the State of Assam together with another entity, while the respondents were Ajit Kumar Sharma and several other individuals. The official citation for the decision is reported in 1965 AIR 1196 and 1965 SCR (1) 890, with additional references appearing in later citations.

The respondent, Ajit Kumar Sharma, was employed as a teacher in a private college that was affiliated with Gauhati University in the State of Assam. The college received financial assistance from the State in the form of grants‑in‑aid, but such assistance was conditioned upon the college’s compliance with a set of administrative rules. One of those rules, identified as Rule 7, stipulated that any teacher who stood for election to any legislative body must be placed on compulsory leave without pay from the date of filing the nomination until either the end of the next academic session or the termination of the term of the office to which the teacher might be elected. In accordance with this rule, the respondent applied for a three‑month leave of absence and subsequently contested a seat in Parliament. After being defeated in the election, he sought permission to re‑join the college, and the Governing Body of the college granted such permission.

However, the Director of Public Instruction (DPI) intervened and informed the college that the permission granted to the respondent contravened Rule 7. Acting upon the DPI’s warning, the Governing Body informed the respondent that he would remain on compulsory leave without pay until the end of the academic session. The respondent then filed a petition before the High Court seeking a writ of mandamus or any other appropriate direction, alleging three principal grounds: first, that Rule 7 had no legal force; second, that the rule did not bind either the Governing Body or the respondent; and third, that the order placing him on compulsory leave was ineffective. In addition, the petition prayed that the State be directed not to withhold the grant‑in‑aid to the college on the condition that the Governing Body imposed compulsory leave on the respondent. The Governing Body was joined as a party to the petition. The High Court held that the rules were not statutory in nature and therefore possessed no statutory force. Accordingly, the Court directed the Director, as a public authority, to refrain from giving effect to such rules, and it also issued a similar direction to the Governing Body on the basis that it had failed to apply its independent mind to the respondent’s leave request. The State appealed this decision to the Supreme Court, although it did not contest the characterization of the rules as merely administrative instructions. The Supreme Court held that the order of the High Court issuing a writ to the State through its Director should be set aside.

The Court observed that the rules in question were merely administrative instructions and did not possess the status of statutory law. Because they lacked the force of law, the rules could not create any enforceable right in favour of teachers employed by private colleges. Consequently, a teacher could not invoke Article 226 of the Constitution to maintain a writ petition seeking enforcement or non‑enforcement of any provision contained in those rules. The instructions were characterized as matters that existed solely between private colleges and the Government, particularly in the context of the grant‑in‑aid that the State extended to such institutions. In this relationship, no teacher could claim a right under the rules to require either their implementation or their disregard.

The Court further explained that the Governing Body of a private college was free to decide whether or not to act upon any such administrative instruction. Should the Governing Body decline to implement the instruction, the State would then be entitled to consider the appropriate quantum of grant‑in‑aid to be provided. Conversely, if the Governing Body elected to follow the instruction, the Court held that this could not be said to have been done under any compulsion or threat. Accordingly, a teacher could not lawfully insist that the Governing Body refrain from acting in accordance with the instruction.

The judgment cited the decision in Raman and Raman v. State of Madras, [1959] Supp. 2 S.C.R. 227, to support the view that purely administrative directives do not confer judicially enforceable rights. The Court then turned to the specific appeal before it. The appeal, numbered Civil Appeal No. 1062 of 1963, was filed by special leave against the judgment and order dated 25 September 1962 issued by the Assam High Court in Civil Rule No. 221 of 1962. Counsel for the appellants and counsel for respondent No. 1 were respectively mentioned, and the judgment was delivered by Justice Wanchoo.

The matter arose from a writ petition filed by Shri Ajit Kumar Sharma, who was described as the respondent. He was a teacher at Handique Girls College, located in Gauhati. The college was identified as a private institution that offered instruction up to the Bachelor of Arts level and was affiliated with Gauhati University. The university itself had been established under the Gauhati University Act, No. 16 of 1947, hereinafter referred to as the Act.

The Court noted that the college was administered by a Governing Body in accordance with the statutory provisions governing private colleges, specifically the statute framed by Gauhati University under section 21(g) of the Act. Under section 23(h) of the Act, the Executive Council of the university was empowered to frame ordinances relating to the emoluments and conditions of service of university teachers, which included teachers employed in private colleges. Exercising that power, the university had, in pursuit of its authority, framed rules governing the grant of leave to teachers of private colleges. Those rules were intended to bind the Governing Bodies of such colleges and had, in fact, been adopted by the Governing Body of Handique Girls College in July 1956 for application to its teachers.

The Court emphasized that, according to the adopted rules, the Governing Body was prohibited from compelling any teacher to take leave without pay. The college, in turn, received grant‑in‑aid from the State of Assam, subject to certain conditions that were attached to the receipt of such aid. The Court observed that the existing conditions for the grant‑in‑aid did not contain any provision for the withdrawal of the aid in the event that a private college failed to place a teacher—who sought election to a legislative or local body—on compulsory leave without pay from the date of filing of nomination until the end of the next academic session or until the expiry of the elected term.

The college was required, under its own rules, to place any teacher who sought election to a legislative or local body on compulsory leave without pay beginning on the date the nomination was filed and continuing until the end of the next academic session or until the elected term expired, whichever was earlier. The respondent, who was a teacher at the college, applied for paid leave covering the period from 2 January 1962 to 5 March 1962 so that he could contest a parliamentary seat. The Governing Body of the college approved this request by passing resolution number 1 on 9 March 1962. The respondent contested the election, was not successful, and subsequently asked to resume his duties on 6 March 1962. The Governing Body granted this request by passing resolution number 2 dated 9 March 1962, and he returned to work on that date. On 20 March 1962 the Director of Public Instruction, Assam, hereinafter referred to as the Director, wrote to the Principal and the Secretary of the college. In that correspondence the Director referred to a letter dated 10 March 1962 that the college had sent, which apparently informed him of the leave that had been granted to the respondent and to several other teachers in connection with elections to Parliament and the Assam Legislative Assembly. The Director told the college that he could not approve the Governing Body’s resolution that allowed the respondent and the other teachers to rejoin their duties immediately. He explained that such permission conflicted with rule 7 of the Rules regarding the Conduct and Discipline of the Employees of Aided Educational Institutions, hereinafter referred to as the Rules, and therefore could not be sanctioned. The Director further noted that the Rules had been framed in 1960 after due consultation with the university and the Assam College Teachers’ Association. After receiving the Director’s letter, the Governing Body appears to have revisited the question of leave for the respondent and subsequently passed a new resolution on 4 April 1962. The Director’s letter, together with another letter, was examined by the Governing Body, and it was resolved, in light of those letters, that the earlier resolution of 9 March 1962 permitting the respondent to resume duties on 6 March 1962 could not be implemented. The Governing Body further resolved that the respondent and several other teachers should be placed on leave in accordance with the Rules. This new resolution was communicated to the respondent by the Principal through a letter dated 5 April 1962, informing him that he had been placed on compulsory leave without pay until the end of the academic session because of his participation in the recent general elections. Following this action, the respondent filed a writ petition in the High Court, which gave rise to the present appeal. In his petition he contended that the Rules cited by the Director did not have statutory force and that he was entitled to leave under the Rules framed by Gauhati University, which the college had accepted. He further argued that because the Rules lacked statutory authority, they did not limit the powers of the Governing Body in discharging its functions, and that therefore the resolution of 9 March 1962 allowing him to rejoin duty after his leave ended on 6 March 1962 was proper and effective. He maintained that the Director had no power to interfere with that resolution and that resolutions of this nature passed by a Governing Body did not require the Director’s approval and would become effective on their own. He also claimed that because the college’s leave rules did not empower the Governing Body to impose compulsory leave without pay against a teacher’s will and consent, the April 4 1962 resolution ordering such compulsory leave was invalid.

In the present proceedings the respondent argued that the Rules framed by Gauhati University and accepted by the College possessed no statutory force, yet he claimed that this lack of statutory status did not diminish the authority of the College’s Governing Body to exercise its own statutory functions. Accordingly, he maintained that the second resolution of the Governing Body, dated 9 March 1962, was valid and that the respondent was correctly permitted to resume his duties after the expiry of his leave on 6 March 1962. He further asserted that the Director had no power to interfere with that resolution and that resolutions of this nature, passed by the Governing Body, did not require the Director’s endorsement in order to become effective. The respondent also contended that the leave Rules governing the College did not empower the Governing Body to place a teacher on compulsory leave without pay against the teacher’s will and consent; consequently, the resolution of 4 April 1962 which imposed compulsory leave without pay on him was ineffective. Moreover, he argued that the Governing Body should not have acted upon any direction from the Director that was unlawful. The respondent further alleged that the Governing Body’s actions were prompted by a threat contained in a letter from the Additional Director dated 19 March 1962, which warned that the education department would withhold funds for salaries and allowances for any employee who took leave in connection with elections in violation of rule 7 of the Rules. He characterized the Governing Body’s response as improper and maintained that the Director had no authority to make such a threat. In view of these contentions, the respondent sought a writ of certiorari, prohibition and mandamus declaring rule 7 of the Rules to be without legal force and not binding on either the Governing Body or himself. He further prayed that the resolution of 4 April 1962 be declared ultra‑vires, void and ineffective, and that the Director be directed not to withhold the grant‑in‑aid payable to the College on the ground that the Governing Body had failed to place the respondent on compulsory leave without pay.

Before examining the State’s response, the Court reflected on the origin of the Rules in question. It was noted that in February 1959 the Government of Assam resolved to provide an additional grant‑in‑aid to private colleges so as to implement the recommendations of the University Grants Commission concerning the scales of pay and other emoluments payable to teachers employed by such institutions. The envisaged scales and emoluments were intended to be more favorable to the teachers and to represent an improvement over the remuneration and benefits they had previously received. The Government further determined that the grant‑in‑aid would be disbursed to private colleges only on the condition that the college authorities agreed to observe certain rules regulating the conditions of service of their employees. Accordingly, the Government set about drafting rules in consultation with Gauhati University and the Assam College Teachers’ Association, while also inviting comments from the Governing Bodies of all private colleges. The Governing Body of the college under consideration responded on 6 August 1960, indicating its agreement with the proposed rules as communicated by the Government. After taking into account the views of Gauhati University and the Assam College Teachers’ Association, the Government formally notified the Rules by a notification dated 9 March 1961, which was subsequently published on 29 March 1961. Rule 7 of those Rules, which is material to the present dispute, provides that an employee who seeks election to a legislative body or holds office in any political organisation or local body shall be placed on compulsory leave without pay from the date of filing his nomination until the end of the election period.

In order to obtain the additional grant‑in‑aid, the college authorities were required to accept certain conditions that the college would abide by rules governing the service conditions of its employees. Consequently the State decided to formulate those rules after consulting both the University and the Assam College Teachers’ Association. The draft rules were also sent to the governing bodies of all private colleges so that their views could be obtained. The governing body of the college in question was consulted and, on 6 August 1960, it passed a resolution indicating its agreement with the proposed rules that the Government intended to frame and that had been communicated to it. The Government further sought the opinions of Gauhati University and the Assam College Teachers’ Association, and after considering all the feedback it issued the final Rules by a notification dated 9 March 1961, which was published on 29 March 1961. Rule 7 of those Rules, which is relevant to the present dispute, states that an employee who wishes to contest an election to the Legislative Body or to hold office in any political organisation or local body must take compulsory leave without pay from the date of filing his nomination until the end of the next academic session or until the term of the office to which he may be elected ends, whichever is earlier; furthermore, such an employee may not retain a lien on his post for more than five years. The Rules were therefore framed after consultation with the University and the Assam College Teachers’ Association, bodies that are presumed to represent the interests of teachers in all private colleges. The college’s governing body was also consulted and subsequently accepted the Rules for promulgation. In that governing body the teaching staff of the college were duly represented, and the Rules were notified only after the concurrence of the University, the College Teachers’ Association and, importantly, the governing body of the college in which the teachers had a strong voice. The appellants argued that, because of the manner in which the Rules were prepared and adopted, the Rules were binding on both the college and its teachers, and that thereafter the Government provided the revised grants to the college in reliance on those Rules. The appellants further contended that the Rules possessed statutory force owing to the amendment of the Act by Assam Act 11 of 1961, which inserted a proviso into section 21(g) empowering the Government to make necessary rules in consultation with the University for government colleges and government‑aided colleges. The appellants raised additional objections, which the Court deemed unnecessary to discuss in detail. The governing body of the college was also made a party to the writ petition and it filed a written statement. In that statement the governing body supported the position taken by the State and specifically highlighted that the governing body, in which the college’s teaching staff were ten‑fold represented, had accepted the Rules before they were officially notified.

In this case the Government had been providing a grant‑in‑aid to the College in accordance with the recommendations of the University Grants Commission, and as a result the pay scales of the teachers had been raised and the teachers had been receiving both salary and dearness allowance under that grant‑in‑aid. No member of the teaching staff had ever made any representation, either while the Rules were being considered or when they were notified, that he would not be bound by those Rules. Because the teachers, including the respondent, had accepted the salary and dearness allowance that were payable under the grant‑in‑aid on the terms and conditions specified in the Rules, the respondent was deemed to be estopped from challenging the Rules, which were portrayed as being in the interest of the College and of education generally. The Governing Body of the College was likewise bound by the Rules after it had accepted them, and the resolution dated 4 April 1962 was not passed on account of any threat made by the Director. The principal issue that was argued before the High Court was whether the Rules in question possessed any statutory force. An alternative argument was put forward that even if the Rules did not have statutory force and were merely executive instructions issued for the purpose of the grant‑in‑aid, the High Court should not issue a writ against the State or against the Director for interfering with such administrative instructions. It was further submitted that, if the Rules were merely executive instructions that had been accepted by the Governing Body—a body in which the teachers of the College were well represented—then the Rules would constitute contractual obligations that could not be enforced by a writ under Article 226. The High Court first examined the question of statutory force and concluded that the Rules could not be said to have been issued under the proviso to section 21(g) of the Act, which was the basis of the reliance, and therefore the Rules did not acquire any statutory force. Nevertheless, the High Court held that even in the absence of statutory force it was within its jurisdiction to issue a mandamus under Article 226 to the Director, who was a public authority, directing him not to give effect to the Rules that lacked statutory authority. Accordingly, the Court directed the Director not to act upon his letter dated 20 March 1962. It was also argued before the High Court that the Governing Body was not a statutory body and therefore no writ or direction could be issued to it, and that the respondent’s remedy lay in approaching a civil court to enforce any right he might have. The High Court, however, ruled that the language of Article 226 was sufficiently wide and was not limited to the issuance of writs, directions or orders in the nature of mandamus; rather, it empowered the Court to issue any direction, order or writ that it considered appropriate in the circumstances of each case.

In this matter, the High Court concluded that because the Governing Body of the college had not exercised its own independent judgment on the question of whether to grant leave, the Court was authorized to issue a directive to that body as well. The High Court did not resolve the issue of whether the Governing Body qualified as a statutory entity; nevertheless, it ordered the Governing Body to refrain from implementing the Director’s letter dated 20 March 1962. Following this order, the State and the Director sought permission from the High Court to appeal to this Court, but that request was denied. Subsequently, the State and the Director applied to the Supreme Court for special leave to appeal, and such leave was granted, bringing the present appeal before this Court. It should be noted that the Governing Body of the college has been joined as a respondent in the appeal. The principal question to be determined is whether the High Court was correct in issuing a writ of mandamus directed at the State, through the Director, ordering that the letter of 20 March 1962 not be given effect. The appellants have not argued that the Rules possess any statutory authority; rather, all arguments before us are predicated on the submission that the Rules lack statutory force and constitute merely executive instructions issued by the Government to private colleges as conditions for the disbursement of grant‑in‑aid and for the implementation of pay‑scale recommendations made by the University Grants Commission. Those recommended pay scales appear to be higher than the earlier scales. The Court is of the view that the High Court erred in granting a writ of mandamus against the State through the Director after it had found that the Rules were not statutory but were merely administrative directions intended to facilitate grant‑in‑aid to private colleges. The quantum and terms of grants that the State may provide to private educational institutions are matters for the State’s discretion. While statutory rules may prescribe conditions for such grants, there is no legal prohibition against the State prescribing grant conditions through executive instructions that do not have the force of law. In the present case, the Rules were formulated to provide revised grants to private colleges so that they could pay higher salaries to their teachers in line with the University Grants Commission’s recommendations. The High Court has held, and that finding is not contested before us, that the Rules lack statutory force. Accordingly, the Rules are simply executive instructions that attach conditions to the grant‑in‑aid intended to implement the University Grants Commission’s pay‑scale recommendations for teachers of private colleges. Where the conditions for grant‑in‑aid are imposed by such executive instructions, a private college may either accept those instructions or refuse them; if it refuses, it will not receive the grant contingent upon acceptance of the conditions.

In this situation a private college could either accept the executive instructions that were issued as conditions for receiving a grant‑in‑aid, or it could refuse to accept them. The Court explained that if the college chose not to accept those instructions, it would inevitably forfeit the grant because the grant was expressly conditioned on the college’s acceptance of the stipulated conditions. Conversely, if the college accepted the conditions laid down in the instructions, the college would become eligible to receive the grant‑in‑aid. However, the Court noted that after having accepted the instructions, if the college subsequently failed to carry out the prescribed conditions, the Government would retain the right to withhold the grant‑in‑aid. This relationship, the Court observed, was a direct matter between the Government and the private college concerned.

The Court further held that the conditions and instructions attached to the grant‑in‑aid did not create any enforceable right in favour of the teachers of the private colleges. Consequently, teachers could not demand that any particular instruction or condition be either enforced or not enforced. The responsibility to decide whether to follow any direction contained in these administrative instructions rested solely with the Governing Body of the college. The Court added that the Governing Body was free to disregard any instruction that did not derive from rules possessing statutory force, and that in such an event the State could subsequently decide what, if any, grant it would make. On the other hand, when the Governing Body elected to implement the instruction, the Court observed that it could not be said that the college acted under any coercion or threat. Moreover, the Court emphasized that a teacher could not insist that the Governing Body refrain from carrying out the instruction.

Regarding the nature of the rules for grant‑in‑aid, the Court described them in this case as merely executive instructions that conferred no rights of any kind on teachers. Therefore, teachers could not approach the High Court for a mandamus seeking enforcement or non‑enforcement of these rules, even if the withholding of the grant‑in‑aid might indirectly affect them. The Court clarified that such administrative instructions, although sometimes labelled as “rules,” were matters solely between the Governing Body and the State, represented by the Director, and could not form the basis of a petition for a writ under Article 226 by a teacher.

The Court then referred to the earlier decision in Messrs Raman and Raman v State of Madras, where it had examined orders and directions issued under section 43A of the Motor Vehicles (Madras Amendment) Act, 1948. In that case the Court had determined that those orders did not acquire the status of law regulating the rights of parties and were merely administrative in character. It had also held that no vested right could arise from mere executive instructions, and that any amendment to such instructions pending an appeal would not alter the law or create a vested right for any party. The Court asserted that the reasoning in that precedent applied equally to the present matter, a conclusion that the High Court had already reached in finding that the rules were merely administrative instructions and lacked statutory force.

The Court observed that the High Court, and no party disputed before this Court, had correctly characterized the Rules as merely administrative instructions lacking the force of statutory law. Because the Rules do not possess the status of law, they cannot confer any enforceable right upon teachers employed by private colleges, and consequently no teacher may invoke Article 226 of the Constitution to obtain a writ for either enforcement or non‑enforcement of any provision contained in those Rules. The Court further explained that, as purely administrative directives, the Rules govern the relationship between private colleges and the Government regarding the grant‑in‑aid scheme, and they do not create any individual entitlement for a college teacher to demand that the Rules be applied or disregarded. Accordingly, the Court held that the High Court erred in granting a writ directed against the State through the Director, wherein the Director was instructed not to give effect to his letter dated 20 March 1962 addressed to the Governing Body of the College. Turning to the question of whether a writ could properly have been issued against the Governing Body of the College, the Court noted that the College had not filed any appeal against the High Court’s order that issued a writ against it. In view of the absence of any such appeal, the Court concluded that it could not interfere with the part of the High Court’s order that pertained to the Governing Body of the College. Nevertheless, the Court clarified that it should not be taken as an endorsement of the High Court’s order against the Governing Body in the present circumstances, and that the issue may have to be revisited in a case where it properly arises. Before concluding, the Court recorded a submission made on behalf of the State that, even if the decision were rendered in favour of the State, it would not enforce Rule 7 with respect to the respondent, because the State’s aim was solely to obtain clarification of the law, as indicated by the citation (1) [1959] Supp. 2 S.C.R. 227. In the result, the Court allowed the appeal, set aside the High Court’s order granting a writ against the State through the Director, and noted that the State of Assam had agreed to pay the costs of the amicus curiae engaged for the respondent, Ajit Kumar Sharma. Consequently, no order as to costs was made, and the appeal was allowed. Ur. 5‑1