Kandhya Lal Vs. Manki - Court Judgment

Excerpt:
act no. v of 1881 (probate and administration act), section 78 - act no. ix of 1872 (indian contract act), section 129--administration--surety--continuing guarantee. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. aikman and karamat husain, jj.1. the respondent musammat manki obtained from the district judge letters of administration for the estate of her deceased husband on condition of her giving a bond together with a surety for the due collection, getting in and administering the estate. the appellant kandhya lal became surety for her. less than six months afterwards the appellant asked the district judge to cancel the surety bond which he had given and to call upon musammat manki to furnish a fresh surety. the district judge rejected this application. the appellant come here in appeal. the courts at calcutta and madras are at variance as to whether a surety bond given under the circumstances stated can be cancelled--see raj narain mookerjee v. ful kumari debi (1902) i.l.r. 29 calc. 68 and subroya chetty v. ragammal (1905) i.l.r. 28 mad. 161. the former court held that a surety bond given under the circumstances stated is a continuing guarantee within the meaning of section 129 of the contract act and may be revoked in regard to future transactions by the surety. this view was not accepted by the madras high court. in our opinion the decision of the madras high court is right. we do not think that when a person becomes a surety that an administrator will duly get in and administer the estate of a deceased person, this can be said to be a continuing guarantee within the meaning of the contract act. it appears that in the calcutta case the court deferred disposing of the case until it had inquired whether the administratrix had been guilty of maladministration of the estate, and the learned chief justice in his judgment says: 'i am not dealing with the case of a person who becomes surety, and then from mere caprice or for no sound reason desires to be discharged.' if the case was one of continuing guarantee the surety had an absolute right to revoke his guarantee as to all future transactions whatever his motive may have been. it was in consequence of the appellant becoming surety that letters of administration were issued to musammat manki, and ones these were issued, it appears to us that the appellant had no right to withdraw his surety. we may also add that the probate and administration act confers no power upon the district judge or upon this court to cancel a surety. for the above reasons we are of opinion that the decision of the court below was right and we dismiss the appeal with costs.