Petitioner is the Management of P.A.K.Palanisamy High School, at Madras and it seeks for quashing the order of the first respondent being the joint Director of School Education, Madras dated 30.6.1979, only in so far as it enforces a condition to pay back wages i.e., pay and allowances with all the benefits from the date of removal upto the date of reinstatement of the concerned teachers from the funds of the Management without any claim from the Government funds and for a direction to issue to the 2nd respondent to sanction the payment of staff grant to 18 teachers reinstated in service by the petitioner for the period from 21.4.1979 to 17.7.1979.

2. The petitioner-Management claims as follows: In 1979, there was gross and unprecedented indiscipline among several teachers handling Standards IX and X in the petitioner’s school, and it went to the extent of themselves enabling students to indulge in mass-copying in the examinations and several other acts of indiscipline being committed. Therefore, the Management decided to close the Standards IX and X and accordingly issued notices to 18 teachers informing that the said two standards would be closed for the academic year 1979-80, and therefore, their services were no longer required on and from the reopening date. The notices were issued on 20.4.1979, and they were offered to be paid their salary till the date of notice. The first respondent by his order dated 23.4.1979 asked the petitioner to put forth its, representations on the notices issued, and accordingly it gave its, representations. The Director of School Education by Proceedings dated 3.5.1979 directed the petitioner to continue to function the Said two standards. Petitioner put orth its representations and the same Authority by an order dated 23.5.1979 cancelled its proceedings dated 3.5.1979, being satisfied with what the petitioner had done. It appears that appeals were filed by teachers against the closure notices, and the first respondent by proceedings dated 17.5.79, called upon the petitioner to offer its remarks on the appeal petitions, and it gave its representations on 30.5.79, whereupon the first respondent by proceedings dated 30.6.79 directed the petitioner to reinstate the teachers into service with all back wages and benefits from the date of removal, i.e., 20.4.1979 up to the date of reinstatement, from the ‘funds of the Management without any claim from the Government funds. Petitioner complied with the directions so issued and restored the teachers into service by the reopening date and also paid them the back wages. Thereafter, the petitioner made a claim for the teachers grant to be paid to cover the amounts disbursed by it under orders of the educational authority, but the department had not paid the amount, because the first respondent has ordered “that there should be no claim from the Government funds” for the period in question. This order is beyond the powers of the appellate authority under Sec.23 of the Tamil Nadu Recognised Private Schools (Regulation) Act 1973, hereinafter referred to as the Act. The power to withhold the grant either permanently or for any specified period, is exclusively conferred only on the Government under Sec.14 of the Act, and if it is to be withheld, it could be only after extending an opportunity, as provided under Sec.14(3) of the Act.The closure notice was issued on the last working date for the academic year 1978-79 and on the reopening date i.e., 18.7.1979 all the teachers have been reinstated, and there being no break in service for them, withholding of grant for the said period was not correct, because whatever steps had been taken by the management having proved to be ineffective, and finally, the service conditions of the teachers having remained unaffected, in that the Management had obeyed the orders of the educational authority promptly the first respondent had acted beyond his jurisdiction in preventing the petitioner from securing the teaching grant.

3. Respondents 1 and 2 would state that, as per Sec.2(1) of the Act the academic year of a school generally commences on the 1st June of the concerned

year, and the closure notice issued before one month and 11 days was contrary to Rule 20 of the Rules, which envisages a six months notice to be issued, and therefore suitable orders were issued for the restoration of the concerned 18 teachers. In allowing the appeals filed by the teachers, the first respondent by his order dated 30.6.79 had stated that, for the disputed period towards teaching grant, “there should be no claim from the Government funds” and such a direction could be issued under Rule 11(4) of the Rules, since he is conferred wi the powers to grant or withhold either permanently or for any specified period. The teachers were not actually in service from 21.4.1979 to 17.7.1979 because they were removed illegally and the Government cannot be called upon to pay for that period. There is no restriction under Sec.43 of the Act preventing the appellate authority from passing orders relating to claims from Government funds, because the above section enables passing of interlocutory orders, as deemed fit. Hence, the direction issued is in order, and referred to Rule 9(2)(g). On a representation made by the petitioner, in G.O.Ms.No.2328, Education, dated 15.12.1979, the Government had already directed that it is the petitioner who will have to pay back wages of 18 teachers for the period from 21.4.1979 to 17.7.1979. Hence, it cannot be contended that no opportunity was given to the petitioner, before the impugned order was passed. The period involved is to be treated as break in service irrespective of the fact whether it took place during the vacation or not.

4. Mr.T.Chengalvarayan, learned counsel for the petitioner submits that, in exercising powers under Sec.23 of the Act, the first respondent had no jurisdiction to withhold the grant of teaching grant and it is a power exclusively conferred on the Government. Sec.2 (5) states that ‘grant’ means any sum of money paid as aid out of State fund to any private school. Sec.14 deals with payment of grant. Government assumes responsibility to pay to private schools grants at such rates as may be prescribed. Under Sub-sec (2) it has a power to withhold either permanently or for any specified period the whole or any part of any grant, to a school which does not comply with the provisions of the Act or Rules made thereunder; or in respect of pay and allowances payable to any teacher or any other person employed in a school, which are not paid to them in accordance with the provisions of the Act or the Rules made thereunder; or which contravenes or fails to comply with any such condition, as prescribed. Before withholding the grant, under Sub-sec.(2), the Government has to give an opportunity to the educational agency to make its representations, under Sub-sec.(3). Rule 9 deals with conditions, which are to be satisfied before recognition could be granted. Rule 11 deals with payment of grant, which would be subject to Government orders and instruction issued from time to time. The District Educational Officer is the competent authority to sanction the grant. The purposes for which the grant may be paid, are specified in Anne-xure I. The Joint Director of Elementary Education and Secondary Education respectively have jurisdiction over different types of schools as mentioned in Rule 11(4) and authorised to withhold permanently or for any specified period the payment of grant, if any of the conditions specified in Rule 9, is contravened or not complied with. Annexure I deals with the staff grant and it shall be paid in full by the state, to cover the entire approved expenditure of pay and other allowances of teaching and non-teaching staff, including employees paid from contingencies. As for maintenance grant it shall be paid at 6 per cent of the assessed teaching grant for a calendar year.

5. By referring to these provisions, Mr.T.Chengalvarayan, learned counsel for the petitioner submits that, in disposing of the appeals, under Sec.23 of the Act, the 1st respondent had gone beyond its jurisdiction conferred upon it in passing orders pertaining to teaching grant, because a decision thereon could be taken only by Government under Sec.14 of the Act. The learned Additional Government Pleader by relying upon Rule 11 would submit that, when the petitioner had contravened the provisions or the Act and terminated the services or certain teachers, the First respondent had the jurisdiction to pass orders either permanently or for any specified period to withhold the payment of grant.

6. Regarding withholding permanently or for any specified period, the whole or part of the grant payable to a private school, under Sec.14 (2) of the Act, the power is conferred only on the Government. It is claimed by respondents that the termination of 18 teachers was in contravention of Section 22 (2) read with Rule 20. It being a non-compliance under Section 14 (2) (i), any order relating to withholding of grant for any specified period could be passed only by Government and not by any lesser subordinate authority. Section 14 (3) provides that any order to that effect could be passed •only after an opportunity is extended to the educational agency. This had not been done. Therefore, the direction given by the 1st respondent that the back wages of all the teachers for the disputed period has to be paid “from the funds of the Management without any claim from Government funds”, was a contravention of Sec.14.

7. On the contention put forth by respondents that under Sec.43 (3) the appellate authority has the jurisdiction to pass such orders as it deems fit, the direction issued by him was not pending disposal of an appeal before it. When the direction issued is part of the final order, it would not come within the ambit of Sec.43 (3).

8. As far as reliance placed on Rule 11(4) is concerned the facts and the circumstances of this case would not bring the contravention committed by the petitioner, within the scope of Rule 9, which deals with several conditions prescribed relating to recognition. Rule 9 (2) (g) states that the educational agency has to carry out the instructions issued by the Director or other officers subordinate to him, with a view to maintain academic standards and to safeguard the interests of teachers and pupils, including linguistic minorities. In the context of what is provided under section 14, Rules 9 (2) (g) and Rule 11 (4) cannot be read as to destroy the power conferred on the Government. The rule making power under section 56 (2) (g) would not result in the power of the Government being abdicated in favour of its subordinates, when the Act does not contemplate such surrender of powers on its part. Hence, there is considerable force in the contention of Mr.T.Chengalvarayan that it is only the Government which could withhold any portion of the teaching grant or maintenance grant, and that could be done only after issue of notice under section 14 (3), and not otherwise.

9. The next contention of the respondent is that, in G.O.Ms.No.2328, the Government had arrived at the same conclusion. But, the said G.O., is not produced before this Court to know as to whether an opportunity as contemplated under Sec.14 (3) had been complied with or not. This Court has pointed out more than once, whenever any material is relied, upon in a counter-affidavit it is incumbent upon the respondent to furnish copies of such materials by annexing them as part of the counter-affidavit so that it would enable not only the petitioner to realise as to whether his claims are not correct or not but also enable the Court to know the correct position. Hence, the reliance placed on the said G.O., would not make the impugned proceedings valid.

10. The impugned order being set aside, would not preclude the Government to exercise its power under section 14, and pass suitable orders thereon. In matters of this nature, while disbursing the staff grant to teachers for the involved period their agony would not be there. For any contraventions or omissions committed by the Management in relation to the service conditions of the teachers, there is ample power conferred under the Act, to withdrawing recognition. Having held that the petitioner Management had contravened section 22 (1) read with Rule 20, nothing precluded the concerned authority to take action for withdrawing of recognition. In such of

those instances, Government must disburse the staff grant to teachers directly and if it be held that the Management was responsible for consequences that occasioned and was bound to reimburse the Government, then it could be deducted out of the endowment created under Rule 9 (2) (c). Unless within the time fixed, the deficit out of the endowment on hand is made good then the recognition could be withdrawn. Like invoking Bank guarantees, from and out of the endowment, adjustments could be made then and there, and thereby prevent teachers to resort to protracted proceedings in more than one forum. Larger amount of endowment can be insisted from schools which repeat commissions and irregularities etc. Certain arguments have been heard on this aspect, but this being not an appropriate matter, they will be considered as and when all the materials are placed before Court, as to how far the difficulties experienced by teachers could be set right, when teachers are told to look to managements for their emoluments, inspite of State having assumed full responsibility to pay them on due dates.

11. Hence, this writ petition is allowed only on the ground that the impugned order, as passed, is contrary to the provisions of the Act, but leaving it open to the concerned authorities under the Act to take appropriate action, for whatever had been done by the petitioner-Management. No costs.