In the absence of any specific prohibition in the Secondary School Code against a teacher accepting full-time employment elsewhere, it was permissible for the management of the school to allow its employee to undertake full-time employment elsewhere for some temporary duration with a view to allow him to better his prospects.

Headnote:
SECONDARY SCHOOL CODE - LIEN - EXTRAORDINARY LEAVE - CONTINUITY OF SERVICE - The service of a teacher in a secondary school, who was granted lien and extraordinary leave to work as a lecturer in a B.Ed. College for two academic sessions, was held to be continuous. The court held that in the absence of any specific prohibition in the Secondary School Code against a teacher accepting full-time employment elsewhere, it was permissible for the management of the school to allow its employee to undertake full-time employment elsewhere for some temporary duration with a view to allow him to better his prospects.
Fact of the Case:

The petitioner, a teacher in a secondary school, challenged the order of the State Government holding that the services of the respondent, another teacher in the same school, were continuous during the period he was working as a Lecturer in the B.Ed. College of the Nagpur University. The petitioner claimed that the respondent's service should be treated as broken due to the alleged breaks in service.
Finding of the Court:

The court held that there was no break in the service of the respondent. It held that the Secondary School Code did not prohibit a teacher from accepting full-time employment elsewhere, and that the management of the school was permitted to allow its employee to undertake full-time employment elsewhere for some temporary duration. The court also held that the respondent was granted lien and extraordinary leave for the periods of his absence, and that the management had the authority to grant such leave under the School Code.
Issues: 1. Whether the Secondary School Code prohibited a teacher from accepting full-time employment elsewhere? 2. Whether the management of the school was permitted to allow its employee to undertake full-time employment elsewhere for some temporary duration? 3. Whether the respondent was granted lien and extraordinary leave for the periods of his absence?
Ratio Decidendi: 1. The court held that there was no specific prohibition in the Secondary School Code against a teacher accepting full-time employment elsewhere. It held that Rule 75.12 of the School Code permitted an employee to serve in another institution with the prior permission of the employer. 2. The court held that the management of the school was permitted to allow its employee to undertake full-time employment elsewhere for some temporary duration. It held that Rule 71.1 of the School Code provided that the general rules of discipline and conduct issued by the Government from time to time were binding upon the employees in the secondary schools, and that on matters where there were no Rules or instructions of the State Government, it was open to the management to regulate such matters by its rules or instructions. 3. The court held that the respondent was granted lien and extraordinary leave for the periods of his absence. It held that the resolution of the Managing Committee dated 17-8-1975 and the letter dated 9-9-1975 addressed to the respondent by the Head Master of the school showed that the respondent was granted such permission after which alone he had joined the B.Ed. College w.e.f. 19-8-1975 as a lecturer.
Final Decision: The court dismissed the petition, holding that the service of the respondent was continuous and that there was no break in his service during the period he was working as a Lecturer in the B.Ed. College of the Nagpur University.

JUDGMENT - DhabE H.W., J.:—The petitioner who is working as a Teacher in one of the secondary schools run by the respondent No. 2 society has challenged the order of the State Government dated 15-11-1988 by which the State Government has held that the services of the respondent No. 3 are continuous and there is no break in his service in the school during the period he was working as a Lecturer in the B.Ed. College of the Nagpur University.

2. The undisputed facts are that the petitioner was appointed as an Assistant Teacher on 8-7-1960 whereas the respondent No. 3 was appointed as a Lecturer in 1957 in the Dharampeth High School run by the respondent No. 2 society. It may be seen that but for the alleged breaks in service, it is not in dispute that the respondent No. 3 was senior to the petitioner, being appointed earlier to him in the school service.

3. Pursuant to the advertisement issued by the Nagpur University, the respondent No. 3 desired to apply for the post of a Lecturer in the B.Ed. College of the Nagpur University, before the commencement of the academic session 1975-76. He made an application to the Head Master of the school on 15-7-1975 claiming that his application should be forwarded to the Nagpur University and that he should be granted lien on his post in the school for the period for which he would be serving as a Lecturer in the B.Ed. College of the Nagpur University. By his letter dated 16-7-1975, the Head Master of the school forwarded his application to the Registrar of the Nagpur University and informed him that the respondent No. 3 would be relieved only after his lien was sanctioned by the Managing Committee and duly approved by the proper authority of the Education Department of the State Government. He sent a similar communication to the respondent No. 3 also. It is the case of the respondent No. 3 that there was another advertisement for second post in the B.Ed. College of the Nagpur University for which also he made an application which was also forwarded by the Head Master to the Nagpur University. While making this application, the petitioner also applied to the Head Master of the school on 17-7-1975 claiming that he should be granted extraordinary leave with lien during the period of his service in the B.Ed. College of the Nagpur University.

4. The Managing Committee of the respondent No. 2 society passed a resolution on 17-8-1975 granting lien to the respondent No. 3 for one academic session. The respondent No. 3 thereafter joined the B. Ed. College of the Nagpur University on 19-8-1975 and served there for one academic session till 31-3-1976. On 1-4-1976, he joined his duties in the school. However, in the next academic session i.e. 1976-77, he again made application pursuant to the advertisement issued by the Nagpur University for the post of a lecturer in its B. Ed College. The said application was also forwarded through the Head Master to the Nagpur University. The respondent No. 3 again sought, by his letter dated 7-7-1976 addressed to the Head Master of the school, extraordinary leave and lien upon his post in the school.

4-A. The Managing Committee of the respondent No. 2 society by its resolution dated 13-10- 1976 again granted him lien upon his post for the year 1976-77. The managing committee further directed that his period of absence during the two academic sessions should be treated as extraordinary leave. After serving as Lecturer in the B.Ed. College of the Nagpur University till 31-3-1977, the respondent No. 3 again resumed his duties in the school from 1-4-1977.

5. The respondent No. 3 continued in his service and his service was treated as continuous by the management. However, by a letter dated 17-5-1983 addressed to the Head Master of the School the Senior Auditor, Education Department, Nagpur pointed out that under the Secondary School Code, there is no provision to allow the lien to the teacher in his post in the school if he wants to join another educational institution. He

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Judicial Analysis