IMPORTANT POINT
Termination of services of appellants is invalid. They are reinstated but they will be entitled to only 3 years of salary which management will pay from its own funds and not from the financial assistance received from the Govt. as management is also guilty of wilful default and non-observation of the Rules.

Headnote:(i) Karnataka Private Educational Institutions (Discipline & Control) Act, 1975-Sections 3, 6 and 15-Karnataka Private Educational Institutions (Discipline and Control) Rules, 1978-Rule 6-Method of recruitment-Whether requires approval of the Head of Deptt. i.e. Director of Public Institutions where appointment is to be made on the basis of recommendation of Selection Committee constituted under Rule 6(2)? (No)-Whether same is required under non-statutory Rule 16 of Grant-in-Aid Code for Secondary Schools? (No)-(Statutory Rule cannot be supplemented by executive or administrative Rules)-Whether breach of non-statutory Rule 16 can render the appointment invalid? (No).
       Held : A perusal of Rule 6 would show that there is no requirement for Management to take any approval from the Head of the Department who is the Director of Public Instructions, in respect of regular appointment of a teacher selected by the Selection Committee constituted under sub-rule (2) of Rule 6 of the Rules. Whereas, under sub-rule (5) of Rule 6, if the Management appoints any teacher for a period of 3 months or less, or for part time, such an appointment is required to have the approval by the Head of the Department. It appears that the omission to obtain approval of Head of the Department in case of a regular teacher under the rules is deliberate. Reason being that the Head of the Department himself or his nominee sits in the Selection Committee and it is because of that reason, the approval of the Head of the Department in case of a regular appointment has been dispensed with under the rules. Whereas, if the appointment is made on a ad hoc basis by the Management for a period of 3 months or less, or for part time, the same is required to have the approval of the Head of the Department apparently for the reason that the Head of the Department or its nominee is not party to the decision to make ad hoc appointment in the institution. We are, therefore, of the view that the rules do not contemplate for obtaining approval of the Head of the Department i.e. the Director of Public Instructions where the appointment is to be made on the basis of the recommendation of Selection Committee constituted under sub-rule (2) of rule 6 of the Rules. (Para 7)
       Held further : We noticed earlier, the appointment and conditions of service of teachers in private government aided institution are governed by the provisions of the Act and the statutory rules. The said provisions are self-contained code relating to the appointments of teachers in private aided institutions. The field relating to method of appointment of regular teacher in a government aided institution is fully covered by the provisions of the Act and the rules and we do not find any provisions in the Act empowering the Government to supplement the rules by executive instructions. It is no doubt true that if the Act had empowered the State Government to issue administrative instructions by way of supplementing the rules, the position would be different. In such a case, the Government would have power to fill up the gaps in the rules by issuing administrative instructions if the rules are silent on the subject provided the same is not inconsistent with the statutory rules already framed. In the present case, the Act does not empower the State Government to supplement the rules by issuing administrative instructions or orders. In the absence of such provision in the Act, it is not open to the government to supplement the rules by the executive orders. If we accept the argument of learned counsel for the respondent, it would be repugnant to Sections 3 and 15 of the Act. (Para 9)
       Held also : The aforesaid non-statutory rule was substituted in the Code by government order dated 17.6.67 and whereas the statutory Rules governing the method of appointment of teacher came to be published in the gazette on 31.1.78. It is, therefore, manifest that non-statutory Rule 16 was never intended to supplement the statutory Rules and, therefore, not applicable in the case of appointment of teacher in private government aided institutions. Yet, there is another reason why the non-statutory Rule 16 is not applicable in the case of appointment of teachers in the institution. The administrative instructions pertaining to grant-in-aid for secondary schools have been issued with the object of extending and improving institutions and for that purpose a sum of money is annually allocated by the government for distribution as grant-in-aid to schools subject to observance to the conditions specified therein. The conditions embodies in Rule 16 of the grant-in-aid code provide for the conditions under which financial assistance would be made available to the Management of the institution by the government. If there is a breach of the conditions of the grants-in-aid, it is open to the government either to suspend or cancel the financial grant to the institution. But, such breach of conditions of the grant-in-aid code would not make the appointment of a teacher in the institutions invalid when the method of appointment of teachers in the institution is fully covered by the Act and the statutory rules. It is, however, true that for breach of administrative instructions which have no statutory force, a public servant or the person guilty of such a breach can be subjected to disciplinary action; but the same cannot be pressed into service for action which has the effect of modifying the statutory rules. We are, therefore, of the view, that breach of non-statutory Rule 16 would not render the appointments of appellant invalid. (Para 11)
       (ii) Karnataka Private Educational Institutions (Discipline & Control) Act, 1975-Section 6-Termination of service-Karnataka Private Educational Institutions (Discipline & Control) Rules, 1978-Appellants were appointed as Asstt. Teacher on probation for one year-Continued even after one year-Absent from duty without leave-Whether amounts to automatic termination of their service? (No).
       Held that even though the appellants were probationers, their services could not be ceased to have effect either by non approval by the Head of the Department or by their remaining absent from their respective duties. There is no provision either in the Act or the Rules providing for automatic termination of services of a teacher on account of being absent without leave. If any teacher remains absent without any leave, it is open to the Management to terminate the services of such teachers only after complying with the provisions of the Act and the rules or principles of natural justice. In the present case, we do not find any provision either in the Act or Rules providing for automatic termination of service of a teacher in the event of a teacher remaining absent without leave. In the absence of such a provision in the Act or Rules, the alleged deemed termination of services of the appellants without giving any opportunity to the appellants was unlawful and deserves to be set aside. (Para 12)
       (iii) Claim of arrears of salary by appellants for last 10 years-No grievance on record High Court disbelieving them-Whether correct? (Yes)-Proper course-Allowing arrears of 3 years to be paid by management out of its own funds-Appeals allowed accordingly.
       Held : Before we part with the case, we would like to observe that we are in agreement with the view taken by the High Court that it is unbelievable that the appellants were not paid their salary for the last 10 years, as at no point of time, the appellants had made any grievance either to the Head of the Department or to the Management in respect of non-payment of salary. If the appellants were not paid salary, they ought to have made representation to the Head of the Department or gone to a court of law for recovery of arrears of salary which they did not do so. Therefore, they are not entitled to arrears of salary for the last ten years. Under such circumstances, we are of the view that the appellants are entitled to arrears of salary only for the last 3 years. In the present case, we also find that the management was guilty of wilful default and non-observation of Rules, Assuming there was requirement of obtaining approval of Head of the Department in regard to appointment of the appellants, which the management is now contending, it does not appear to reason why management did not take any steps for obtaining approval of the Head of the Department and permitted the appellants to teach in the institution for long period of ten years and suddenly the management treats the services of the appellants having automatically terminated. For such wrongful act on the part of the Management, we direct that arrears of salary to the appellants shall be paid by the Management from its own funds and not from the financial assistance received from the Government. (Para 13)
       Held consequently : For the aforesaid reasons, we are of the view that the appeals deserve to be allowed. The judgment under challenge is set aside. The appeals are accordingly allowed. There shall be no order as to costs. (Para 14)

JUDGMENT

V.N. Khare, J.-Leave granted.

2. There is an organisation known as Vishwa Bharata Seva Samithi (hereinafter referred to as the Samithi ). The Samithi is running a Higher Secondary School (hereinafter referred to as the Institution ) in the town of Belgaum, Karnataka. The institution is imparting education upto higher secondary level. The institution is a private government aided school, recognised by the Government of Karnataka. The method of appointment and condition of services of the teachers and employees working in the institutions are governed by the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 (hereinafter referred to as the Act ) and the Rules framed thereunder known as the Karnataka Private Educational Institutions (Discipline and Control) Rules, 1978 (hereinafter referred to as the Rules ). In the year 1984, a post of Assistant Teacher in the institution fell vacant. The Management of the institution advertised the said vacancy and invited applications for appointment to the said post. Appellant No. 1, and others, in response to the said advertisement submitted applications and for that purpose a Selection Committee was constituted in accordance with the provisions of the Act and the Rules framed thereunder. Appellant No. 1 was selected and recommended by the Selection Committee for appointment as Assistant Teacher. The Management, by a resolution dated 24.6.85, resolved to appoint appellant No. 1 on probation for a period of one year. Consequently, appellant No. 1 joined the service at Madhyamika Vidyalaya Mattiwade w.e.f. 1.7.85 on a pay scale of Rs. 750/- to Rs. 1,500/-. It is alleged that appellant No. 1 continued to teach till June 1994 when he was prevented by the Management of the School from performing his teaching assignment. Similarly, appellant No. 2 after having been selected by the Selection Committee constituted under the provisions of the rules was appointed as Assistant Teacher in the institution on probation for a period of one year. It is alleged that appellant No. 2 continued to work, but subsequently he was also prevented from performing his teaching duties. In such circumstances, the appellants herein, preferred separate appeals before the Tribunal constituted under the Act. The Tribunal allowed both the appeals and directed for reinstatement of the appellants. Aggrieved, the Management filed two Civil Revision Petitions before the High Court of Karnataka. The case of the Management, inter alia, was that, since appellant No. 1 was absent from 25.11.1991 to 1.6.1992, 1.7.92 to 6.7.92, 27.7.92 to 27.7.92, 2.8.92 to 14.8.92 and thereafter from 15.8.92 onwards remained absent and, as such, the services of the appellant stood automatically terminated and that the appellant was appointed on probation subject to the approval of Director of Public Instructions, Belgaum and there being no approval to the appointments, the appellants have ceased to be teacher in the institution. However, the case of the appellants before the High Court was that they were appointed on probation and after the expiry of the probationary period, they automatically became regular teachers and since no order of termination having been passed in accordance with the provisions of the Act and Rules framed thereunder, the action of the Management in not permitting the appellants to perform their duties was wholly illegal and arbitrary. It was also their case that there being no provision either under the Act or the Rules for obtaining approval for appointment as Assistant Teacher the appointments of the appellants were in accordance with law. The High Court was of the view that since the Management did not obtain the approval of the concerned Inspecting Officer in regard to appointments of the appellants as Assistant Teacher, the appellants have ceased to be teacher in the institution. In that view of the matter, the Civil Revision Petitions filed by the Management were allowed and

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