BANGSHIDHAR SARMA Vs. DIRECTOR OF PUBLIC INSTRUCTION AND ORS.

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution of India directed against the Director of public instruction, Assam, Inspector of Schools Central Assam Circle, Nowgong, Sri R.N. Bardoloi Secretary of the Managing Committee of Haibargaon Government Aided High School and Sri Rupraui Natn, Assistant Teacher, Haibargaon Government Aided High School. Petitioner's case is that he is a graduate of the Calcutta University and was appointed as the Assistant Head Master In the Haibargaon Aided High School in May, 1957. From the 1st June, 1961, he became the Head Master in charge of the said school on the retirement of the permanent Head Master. "The Assam Aided High and Higher Secondary Employees Rules 1960 (hereinafter called the Rules) came into force with effect from the 15th February, 1961 under Government Notification No. ESS 140/59 dated 9th March 1961 which was published in the Assam Gazette of the 29th March, 1901. In Rule 4 of these Rules method of recruitment of Head Masters and Head distresses was laid down. In complete violation of this rule, the Managing Committee of the aforesaid school advertised the post of the Headmaster and decided to appoint opposite party No. 4 to the said post Ignoring the claim of the Petitioner. The opposite party No. 2 namely, the inspector of Schools, Central Assam Circle, referred the matter to the Director of Public Instruction and at the direction of the latter approved the appointment. The Petitioner contends that the entire proceedings commencing from the advertisement of the post to the orders of the Director of Public Instruction) and consequent order of the Inspector of Schools are void and illegal being against the Rules (2) It is not disputed that the proceedings in question in this case are neither judicial nor quasi judicial and as such a writ of certiorari will not issue. It is also not disputed that a writ of mandamus will not also be available unless the Rules which are said to have been violated are statutory. Mr. Goswami appearing on behalf of the Petitioner sub most that although the notification under which the Rules were issued does not mention any provision of law under which they wore issued, it must be presumed that they were made under Article 301 of the Constitution of India. This Article runs as follows:

(2.) PROVIDED that it shall be competent for the President or such persons as he may direct in the case of services and posts In connection with the affairs of the Union, and for the Governor of State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.

(3.) WE do not think that there is any substance in the above contention. A person may hold a post under the Union and yet he may be posted to a Slate and employed In connection with the affairs of the State. In such a case, that person will continue to hold the office at the pleasure of the President. Similarly, if a person who is under the State is posted in connection with some affair of the union, he will continue to hold his office at the pleasure of the Governor. That is why different terminologies have been used in Article 309 and 310. On the other hand, the distinction implied by the expressions "public services" and "post in connection with the affairs of the Union or of any State", as they appear in Article 309, is explained by the fact that all civilian employees of the Union or of a State are not in the established services, such as, Indian Administration Service, Indian Police Service, Assam Civil Service, Assam Police service or Assam Education Service etc. Many of them hold appointments outside these established services. The terms "affairs of the State" In its plain or ordinary meaning will mean exclusive Government affair. There is nothing to show that the Constitution -makers intended that a wider sense should be attached to this terminology and that it should include affairs of any private institution to which Government makes a financial grant.