KanaganUnam v. Karthigesu
Present : L. B. de SDva, J,
S. KAN A G A RATNAM, Petitioner, and S. KARTHIGESUand 2 others, Respondents
S. C. 90—Application for a Writ of Quo Warranto
Local Authorities Elections Ordinance No. 56 of 1946, s. 10 (1) (d)—Teacher inDirector-managed Assisted School—Qualification for membership of a VillageCommittee—Assisted Schools and Training Colleges (Special Provisions) ActNo. 5 of 1960, ss. 3 (1), 4, 7 (1), 17—Quo Warranto.
A teacher employed in a Director-managed Assisted School under the pro-visions of the Assisted Schools and Training Colleges (Special Provisions) ActNo. 5 of I960 does not hold a public office under the Crown within the meaningof section 10 (1 )(d) of the Local Authorities Elections Ordinance No.56 of 1946.
Application for a writ of quo warranto.
G. T. Samarawichreme, with G. B. Kumarahulasinghe, for the Petitioner.
J. D. Asirwatham, with A. R. M. Munsoor, for the 1st Respondent.
H. L. de Silva, Crown Counsel, for the 2nd and 3rd Respondents.
Cur. adv. wit.
1 [I960) 62 N. L. R. 233.
IfiG vL. B. DE SILVA, J.—Kanagaratnam v. Karlhigemt
August 4,. 1961. L. B. de Selva, J.—
The 1st Respondent was elected as the member for Ward No. 9 ofthe Village Committee of Nallur at an election held on 4th January, 1961.The petitioner who unsuccessfully contested the 1st Respondent at thiselection, is now challenging the election of the 1st Respondent on theground that he held and continues to hold a Public Office under the Crownwithin the meaning of Section 10 (1) (d) of the Local Authorities ElectionOrdinance No. 56 of 1946 and maintains that he is disqualified from sittingand voting as a member of the Village Committee. He has applied for awrit of Quo Warranto on the 1st Respondent.
The other grounds set out in the Petition were not pressed by Counselat the hearing of this application.
The 1st Respondent was and still continues to be a teacher at theSenguntha Hindu English School which is owned and run by the HinduBoard of Education, which is a private organisation. The School atall times material to this application was a private assisted School,receiving a Government Grant-in-aid under the Education Code.
Prior to the enactment of the Assisted Schools and Training Colleges(Special Provisions) Act, No. 5 of 1960 it has been held by Nagalingam, J.in O. T. de, Silva v. K. S. de Silva 1 that a teacher employed in a privateassisted School did not hold office under the Crown within the meaning ofSection 10 (1) (d) of the Local Authorities Elections Ordinance, No. 53 of1946.
At that time, under clause 16 of the Code of Regulations framed underthe Education Ordinance, No. 31 of 1939, no appointment or dismissalof a teacher of an assisted English School could be made without the priorapproval of the Director of Education. There was also provision underthese regulations for the Government to pay the salaries directly to theteachers in such Schools or to the Manager of the School.
In the School concerned in that Application, the salaries of the teacherswere directly paid by the Government to the teachers in that School.Section 50 of the Education Ordinance defines a “ grant ” paid to anassisted School as any form of sub-vention from state funds, includingsalaries paid direct to the teachers by the Department. It was held inthat application that the-salaries of teachers paid by Government con-stitute nothing more or less than a subsidy made by Government to themanagement of the School based on its educational policy.
So far as this point is concerned, there is no difference in the Code ofRegulations framed for assisted English Schools and assisted VernacularSchools.
The only question that this Court has to consider in the present appli-cation is whether the position of the 1st Respondent is altered by the
1 (1951) 53 N. L. JR. 343.
L. B. DE SILVA, J-—Kanagaratnam v. Karthig&su
provisions of the Assisted Schools and Training Colleges (Special Provi-sions) Act, No. 5 of 1960. Under section 3 (1) of this Act, the Ministermay declare that, with effect from such date as shall be specifiedin the Order, the Director shall be the Manager of every assisted School towhich this Act applies.
At the relevant time, this School was a Director-managed Schoolwithin the meaning of Section 3 (1), under the provisions of section^ ofthe Act. It may be mentioned that under the Code of Regulations forassisted Schools, the appointment and dismissal, of teachers are made bythe Manager with the approval of the Director of Education. It followsthat in a Director-managed School, the appointment and dismissal ofteachers are made by the Director of Education, who is a public officer.
It is quite clear that the Act No. 5 of 1960 did not in any way alter theownership of assisted private Schools. It did not vest the ownershipof such Schools in the State. Section 17 of this Act states that*f proprietor ” has the same meaning as in the Education Ordinance, No. 31of 1939. Section 7 (1) of the Act refers to the proprietor of any AssistedSchool of which the Manager is the Director.
The material questions for decision in this application are
Is the Manager of a School a principal or an agent ?
If he is an agent, who is his principal ?
An agent is a person having express or implied authority to representor act for another person, who is called his principal. (Boustead onAgency, 9th edition—page 2.)
The relationship of Agency exists, and can only exist, by virtue of theexpress or implied assent of both principal and agent, except in certaincases of necessity, in which the relationship is imposed by operationof Law.
The assent of the principal is implied whenever another person occupiessuch a position that, according to the ordinary usages of mankind, hewould be understood to have the principal’s authority to act on hisbehalf.
The assent of the agent is implied whenever he acts or assumes toact on behalf of another and after ha ving so acted or assumed to act he isnot permitted, in an action by such person, to deny that agency in factexisted or that he had acted on such person’s behalf.
The relationship of principal and agent may be constituted—
By express appointment by the principal or by a person duly
authorized by the principal to make such appointment;
By implication of law from the conduct or situation of the parties or
from the necessity of the case, or
By subsequent ratification by the principal of acts done on his behalf.
(Vide Boustead on Agency, 9th edition—pages 13 and 14.)
It. B. DE SILVA, J.—Kanagaratnam v. Karthigesix
So long as the Act No. 5 of 1960 recognises the rights of proprietorsto assisted Schools, there can be no question that the proprietor of anassisted School is the principal, on whose behalf the Manager acts, in sofar as he acts within the scope of his authority.
It is also relevant to consider if the Director-manager, who has derivedhis appointment by operation of law, is a duly constituted agent of theproprietor of the assisted School. It appears to me that the relationshipof principal and agent has been constituted by implication of Law from thesituation of the parties.
It is true that the situation of the parties as proprietor and managerhas been created by statute but it follows as a necessary consequenceof that situation that the Director-Manager acting within the scope of hisappointment, is acting for the proprietor of the assisted School.
In whatever manner the State may influence the educational policy ofthe assisted School through the Director-Manager, who as the Director ofEducation is a public officer, there can be no doubt in law that as themanager of a private owned School he is the agent of the proprietor of theSchool.
Every agent has implied authority to do whatever is necessary for,or ordinarily incidental to, the effective execution of his express authorityin the usual way. (Boustead on Agency, 9th edition—page 62). Therecan be no doubt that the appointment of teachers to the School is necessaryfor, or ordinarily incidental to, the effective execution of his expressauthority as the Manager of the School. Apart from such necessity orincidence, the Manager is empowered by the Regulations of the EducationCode, to make such appointments.
I hold that the Director-Manager of an assisted School appointsteachers for and on behalf of the proprietor of the School and, in doing so,he is acting within the scope of his authority as the agent of the proprietor.It is quite clear to my mind that in making such appointments, theDirector-Manager is not acting on behalf of the State so as to make suchteachers persons holding public office under the Crown.
I hold that the 1st Respondent does not hold any public office underthe Crown within the meaning of Section 10 (1) (d) of the Local AuthoritiesElections Ordinance No. 56 of 1946.
I accordingly dismiss the Application of the petitioner. The Petitioneris ordered to pay the 1st Respondent his costs of this application fixed atRs. 210 and to the 2nd and 3rd Respondents jointly a sum of Rs. 105as their costs.
S. KANAGARATNAM, Petitioner, and S. KARTHIGESU and 2 others, Respondents