- (1.) THIS is a petition under Art. 226 of the Constitution.
(2.) THE case of the petitioner Miss Usha Rani Shalley is that she was officiating as head mistress since July, 1952 in the Railway Bengali School, Ajmer under an agreement as per appendix 'x' of the Educational Code of the Uttar Pradesh. Leaving aside other matters which are not relevant, the case of the petitioner is that she was asked to explain certain alleged irregularities by the president of the Railway Bengali School Committee by letter of the 1st of September, 1956. She submitted a reply on the 5th of September, 1956. This was not considered satisfactory by the president and he intimated to the petitioner by a letter of the 12th of September, 1956 that she had been found guilty of the following charges: - (a) Deliberate negligence of duty. (b) Ignorance of rules of service and leave rules. (c) Insubordination. (d) Oppression and harassment to the members of the staff and the general public. (e) Adopting dishonest motives. (f) Inefficiency and incompetency. (g) Misrepresentation and breach of trust. It was added that "her case was under active consideration and the disciplinary action was to be taken against her and that as soon as it was decided, she would be informed of it and in the meanwhile, to hand over possession of all the documents pertaining to the school to the president and to act according to the instructions which might be issued to her so long as she was under suspension. " On the 22nd of October, 1956, she received a communication from the president, No. RBSPG/1/56 URS of that date "under the instructions from the Director of Education, State of Ajmer this is to inform you that your services have been terminated from this institution. " THE petitioner wrote to the president that the Director of Education had no authority to dispense with her services and that this could not also be done by the president himself. It is alleged that she made representation to the Director of Education but he ignored them. It was, therefore, prayed that the order of the termination of the services of the petitioner be set aside. On behalf of the President Dr. M. L. Bhattacharya a reply was submitted that certain irregularities committed by Miss Shalley were noticed and charges were framed. A reply was received and the findings were communicated to the petitioner. Thereafter, he referred the matter to the Director of Education and his orders were communicated to the petitioner. In the additional pleas it was stated that the petitioner was given an alternative employment by the Director of Education which she did not avail of and her petition should not be entertained. It was also urged that it was a matter of internal autonomy of educational institution or breach of contract and, therefore, this Court should not interfere. On behalf of the Director of Education, a reply has been submitted that the Director of Education can only advise the managing committee and it is the managing committee which is answerable for the alleged action. It was not specifically denied that the order of dismissal was not passed by the Director of Education. But during the course of arguments a copy of the letter written by the president, No. RBS/g/1/56 dated the 12th of September, 1956 was submitted in which the president recommended the dismissal of the petitioner to which, it was stated the Director of Education replied by letter No. Aid 3/7/8202/56 dated the 15th of October, 1956 as follows : - "it is to inform you that the charges against Miss. U. R. Shalley are of very serious nature but taking into consideration her young age and future career the dismissal will be too drastic a punishment. It has been decided that she may be reverted as assistant mistress and transferred to some other aided institution, orders for transfer being issued separately. Miss Usha Rani Shalley may be informed accordingly. The appointment of Shri R. C. Banerji Rtd. Head Master Govern ment High School Pisangan as head master in your school vice Miss U. R. Shalley is approved subject to the approval of the State Government. " It was stated by the Deputy Government advocate that this was the only letter which was sent to the president and the Director of Education did not pass any order of dismissal as communicated by the president to the petitioner. It was also urged that the matter arose out of a contract of service between the management of the Railway Bengali School and the petitioner and could not give rise to any right which could be agitated in a petition of this nature. The remedy, if any, of the petitioner would be by a separate suit. Learned counsel for the petitioner has drawn our attention to the provisions of the Ajmer Code by which the U. P. Act II of 1921 namely the Intermediate Education Act of 1921 was extended to Ajmer and Merwara. The High School and Intermediate Education Board constituted by the Act of Legislature of the U. P. of Agra and Oudh known as Intermediate Education Act. 1921 became the Education Board of Ajmer and Merwara and the regulations made by that Board having effect in the U. P. of Agra and Oudh became the regulations for Ajmer and Merwara. It is common ground between the parties that as time went on the Board of the U. P. of Agra and Oudh was superseded by another Board for Ajmer and Merwara, but so far as the provisions of the Act and Regulations were concerned, they continued to be in force. Certain regulations were framed by the Board of Intermediate Education, United Provinces and published in the United Province Gazette of the 26th of August, 1922. Under Chapter X, Regulation (3), the provisions of the Educational Code, United Provinces, with regard to grants-in-aid, as contained in Chapter IX, were made applicable to all institutions recognised by the Board, so far as they were not inconsistent with the regulations. Chapter IX of the Educational Code contains regulations 358 to 391. Clause (2) of Rule 358 lays down among other things that: - 'the conditions of service of every permanent teacher including heads of institutions shall be governed by an approved agreement executed by him and the managing committee. ' The approved form of agreement is given in appendix X. That form lays down among other things in clause (10) that the committee shall not terminate the agreement in any case unless a resolution to this effect had been passed at a meeting of the committee specially convened for the purpose by a 2/3rd majority of the persons present and voting, and unless adequate reasons for such action are recorded in the resolution. It is provided that before the termination of an agreement with a headmaster for inefficiency the manager should consult the District Inspector and should give full reasons for wishing to discharge the headmaster, and the action proposed to be taken by the manager would only be valid if the Inspector approves. It is further laid down that if the manager or the headmaster is dissatisfied with the decision of the inspector an appeal would lie to the Director of Education within three months. " It was alleged by the petitioner in paragraph 3 of the petition that an agreement of the nature described in the Educational Code and referred to above was executed between the petitioner and the managing committee of the Railway Bengali School This was admitted by the president to be correct and the Director of Education has not disputed this fact. It may also be mentioned that the Railway Bengali School is an institution having certain articles of association, a copy of which has been produced by the petitioner and its correctness is not disputed. Article 26 of that document relates to dismissal of staff and it is mentioned that "the committee may at any time at a meeting regularly convened pass resolution dismissing a permanent employee for one or more of the following reasons : - (a) Insubordination. (b) Deliberate neglect of duty. (c) Serious misconduct or the commission of an act which constitutes an offence. (d) Gross inefficiency or inability to do the duty. There is a further clause that no resolution referred to above shall be effective without the approval of the Director of Education. As stated above the form of agreement between the headmaster and the managing committee of an aided school is laid down in the Educational Code in chapter IX read with the appendix and this chapter is a part of the regulations framed under the Intermediate Education Act, 1921. The Inspector of Education and the Director of Education have been entrusted with certain duties and the matter of dismissal is one of such matter which the Inspector or the Director of Education has to deal with. In the present case it is common ground that the committee of the Railway Bengali School did not pass any resolution terminating the services of the petitioner. The findings in the departmental enquiry against the petitioner were arrived at by the president and the recommendation to the Director of Education for the dismissal of the petitioner was also made by the president himself. The letter sent by the president clearly shows that the views expressed in the letter were those of the president and not of the committee. In the case of aided schools, and this Railway Bengali School is one of them, any action for terminating service of the headmaster or the head mistress, as the case may be, could be taken by the committee by a resolution in the manner provided in clause (10), but even this resolution would be of no avail if the dismissal was on the ground of inefficiency unless the action taken was approved by the Inspector of Education. The Director of Education only comes in for hearing the appeal. In the present case the Director of Education had purported to act on the recommendation of the president and not of the committee. It is not shown by the respondents in what manner the Director of Education had authority to take any action without the matter being referred to in the first instance to the Inspector as laid down in the agreement. Leaving this matter apart we proceed to consider another aspect of the case. Although on behalf of the Director of Education it is urged that the dismissal was by the president and not by the Director of Education, the president insists that the letter of the Director could only be interpreted in that manner. The Director of Education said in his letter No. Aid 3/7/8202/56 of the 15th of October, 1956 referred to above - "it is decided that Miss. U. R. Shalley may be reverted as assistant mistress and transferred to some other aided institution. Orders for transfer being issued separately. " Along with this letter was another letter issued by the Director of Education No. Aid 3 (12)/3286/56 dated the 19th of October, 1956 to the Manager, Kanya Hitkarni Middle School, Nasirabad in which it was stated that Miss Usha Rani Shalley Inter trained, Mundri Mohalla, Ajmer is approved for appointment in your school on the vacant post of assistant mistress in the grade of Rs. 68-170. A copy of this letter was forwarded to Dr. M. L. Bhattacharya, President, Railway Bengali School, Ajmer for information and necessary action in continuation of Education Department letter No. Aid 3 (7)/8202/56 dated the 15th of October, 1956. It is common ground that Kanya Hitkarni Middle School, Nasirabad and the Railway Bengali School are not run by one and the same committee. So if the petitioner is given appointment in Nasirabad School, she is not reverted. She has to relinquish her post in the Railway Bengali School and join a new appointment. The Director of Education had no power to transfer one teacher from one aided school to another aided school, and, therefore, the president of the Railway Bengali School construed this letter as meaning that her services were to be terminated from the Railway Bengali School and she was being provided with employment elsewhere. The president in using the language that 'her services have been terminated from this institution' shows how he understood that order. Therefore, inspite of the observations of the Director of Education that the dismissal of the petitioner would be too drastic a punishment, he had decided that her services vis-a-vis the Railway Bengali School should stand terminated. He indirectly accepted the recommendation of the president. As stated earlier the stage for interference by the Director of Education under the Code comes at the appellate stage. His action is not supported by the Educational Code firstly, because the termination of the services was not recommended by the managing committee of the Railway Bengali School and secondly, because it was the Inspector of Schools who was to decide in the first instance whether he would approve the action of the committee or not as the charges included the charge of inefficiency. The letter of the Director of Education conveying his decision that the petitioner may be reverted as assistant mistress and transferred to some other aided institution is, therefore, not within his powers. He purported to act under colour of his office and exceeded his jurisdiction. There is no force in the contention that the matter arose from a contract between private parties, and the petitioner did not avail of the appointment offered by the Director of Education. The action of the Director of Education was in breach of the statutory duty and must be set aside. The order of the Director of Education No. Aid. 3 (7)/8202/56 dated the 15th of October, 1956 and the order of the president purporting to convey that order by letter No. RBSPG/1/56/urs dated the 22nd of October, 1952, are therefore, set aside. The respondents will pay costs to the petitioner. The petition is allowed as aforesaid. . ;