JUDGMENT - Deshpande V.S., C.J.-The two writ petitions of (1) Watkar and (2) Smt. Damle are referred to the Full Bench by an order dated 7-8-I98I by a Division Bench (Masodkar and Jamdar JJ). The question referred by the Division Bench, reads as follows :

“Whether the writ petitions under Articles 226 and 227 of the Con­stitution of India are maintainable at the behest of the teachers for en­forcement of their entitlements under or arising out of the Secondary Schools Code?”

2. Shri Madkholkar, the learned Advocate appearing for the petitioner Watkar, made a statement at the Bar that his case is not covered by the question referred, as he is not claiming any relief under the Secondary Schools Code (hereinafter referred to as the Code). His petition seeks to enforce his right arising out of the Government Resolution referred to in his petition. The question raised in Watkar's case can be disposed of separately by the Division Bench itself without regard to the answer to the question referred being in the affirmative or negative. We, therefore, did not think it necessary to hear him and made it clear that the judgment in this case will not cover his petition. It will be placed before a Division Bench for disposal in accor­dance with law.

3. The validity of the order of the Deputy Director of Education

dated 21-7-1.976 is challenged in the other petition of Smt Damle. She was appointed as an Assistant Mistress in the respondent No. 2 School (run by the Modern Education Society registered under the Societies Registration Act) on temporary basis for one session ending on 30-4-1973. She continued to serve during the period from 24-7-1972 to 30-4-1973 and for another period from 25-6-1973 to 30-4-1974. She was not in service during the academic year 1974-75. The Education Officer, Zilla Parishad, Amravati, however, by his order dated 7-11-1975 directed the respondent No. 2 to accommodate the petitioner by re-employing her in place of some other lady teacher. The order could have been at best passed only under clause 77.4 of the Code. Respon­dent No. 2 challenged the legality of this order in an appeal to the Deputy Director of Education, Amravati. The Deputy Director found that clause 77.4 could not be attracted as the petitioner was not a permanent teacher within its conception of clause 68.3(b) of the Code and the Education Officer had no authority to pass the impugned order. It is the validity of this order dated 21-7-1976 that is challenged in this petition under Articles 226 and 227 of the Constitution.

4. The rule was granted in this petition on 8-11-1976. At the hearing

before the Division Bench, the respondent No. 2 raised a preliminary objection, to the competency of the teacher to claim any rights- under the Code in such a petition, relying on a Division Bench Judgment of this Court (Tulzapurkar J. as he then was, and Shimpi J.) in (Sohanlal v. Deputy Director of Education)1.

5. The Division Bench appears to have heard the matter at some great length. It has delivered an exhaustive and a well considered order dealing with Sohanla's case and several other cases. The Division Bench felt some difficulty in accepting that (1) the Management of the Society alone could enforce the terms of the Code and not the teacher for whose protection several provisions of the Code are designed or (2) the Management alone and not the teacher can challenge adverse orders of authorities of the Education Depart­ ment, found to be discharging the quasi-judicial functions, and (3) the relations between teacher and the School Management should be held to be merely contractual when the Code regulates service conditions of such teachers of the Educational Society in the same manner as service conditions of the Government servants and employees of the statutory Corporation are regulated, and (4) the Code should still be treated as administrative instructions when the affairs of the School are run

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