Miller, in the Goods of; Sullivan and Breen

JurisdictionIreland
CourtHigh Court
Judgment Date09 December 1940
Date09 December 1940
Maunsell v. Minister for Education and Breen.
CHARLES MAUNSELL
Plaintiff
and
THE MINISTER FOR EDUCATION AND THE VERY REV. CANON BREEN
Defendants.

Education - National teacher - Contract of service with Commissioners of National Education - Construction - "Average attendance" at school not maintained - No enquiry held as to cause of falling off in attendance - Salary discontinued in consequence thereof - Legality of such discontinuance - No opportunity given to teacher to state his case - Declaration sought as to teacher's rights - Jurisdiction of Court to grant such declaration, though unable to make an order for payment of salary - Salary payable out of moneys subject to the Appropriation Acts - Rules and Regulations of the Commissioners of National Education in Ireland,1914, rr. 20, 49, 80, 82, 83, 106 and 118 - Ministers and Secretaries Act,1924 (No. 16 of 1924) s. 1 (v) - Rules and Regulations for National Schools under the Department of Education, 1932, r. 14, sub-rules 2 and 3;rr. 21, 82, 89, 91 sub-rule 1, 117 - Constitution of Ireland, 1937, Art. 56clause 3 - Constitution (Consequential Provisions) Act, 1937 (No. 40of 1937),

Witness Action.

The plaintiff, Charles Maunsell, a National School teacher, brought a plenary summons against the defendants, the Minister for Education and the Very Rev. Canon Breen, the latter being the Manager of the National School at which the plaintiff was the assistant teacher, and with whom the plaintiff had entered into the contract that made him such assistant teacher. By his action the plaintiff claimed a declaration that he was at all material times a duly appointed assistant teacher in the Ballyduff National School, Castlegregory, Co. Kerry, and was entitled to be paid the salary and emoluments and increments attaching and appropriate to the office and position from the 1st day of October, 1934, to the 13th day of September, 1936, and he also claimed the usual ancillary relief. Canon Breen did not enter an appearance, and there was a motion for judgment against him.

The facts are stated in the judgment of Gavan Duffy J.

Rule 82, sub-rule 1, of the Rules and Regulations for National Schools under the Department of Education, 1932, provides inter alia that in order to warrant the retention of two assistants in a school the average daily attendance must be 95 but under 140. The following sub-rule of the same rule regulates the position of assistants as to the payment of salary:—

"(2) To warrant the recognition of an assistant teacher or a junior assistant mistress in any school, the average attendance must have reached the minimum prescribed in section (1) of this rule:—

(a) for each of the two quarters immediately preceding the quarter in which the appointment is made.

. . . . . . . .

(7) The grant is not withdrawn from a fully-recognised assistant teacher, owing to a decrease in the average daily attendance of pupils, until the end of two consecutive quarters for which the average attendance of pupils has fallen by more than ten units below that required for the establishment of the grant.

. . . . . . . . . .

(9) If the Department is satisfied that the insufficiency of the average attendance has been due to epidemic disease or other exceptional cause, the grant may be continued for an additional period, but in no circumstances may the date for the withdrawal of the grant from the assistant teacher or junior assistant mistress be postponed beyond the end of the fourth consecutive quarter of insufficient average attendance of pupils.

The exceptional cause should be clearly stated in the manager's return for each quarter of insufficient average attendance, and, in the case of epidemic disease, the claim for the continuance of the grant should be sustained by medical certificate."

The Plaintiff was one of two paid assistant teachers in a national school from 1914 to 1934 and brought an action against the Minister for Education and the manager of the school by reason of his salary having been withdrawn after the 30th September, 1934, as the result of a fall in the average attendance of pupils for two preceding quarters below the prescribed minimum of 95, and in his action he claimed a declaration that he was a duly appointed assistant teacher and entitled to be paid the salary and emoluments attaching thereto.

On the construction of the above Rule 82:

Held (a) that withdrawal of an assistant teacher's salary is not automatic upon a decline of average attendances for two consecutive quarters below the prescribed minimum; (b) that a specific decision to withdraw salary by the Minister for Education (or the Department acting for him) is necessary before payment of salary can be stopped; (c) that such a decision can be reached by the Department only after it has taken steps to satisfy itself as to the existence of the conditions necessary for a decision to continue payment of salary and then finds itself not satisfied; (d) that, in order under sub-rule 9 to satisfy itself or to be not satisfied, the Department must first ascertain the facts; (e) that neither the fact that the returns disclose no exceptional cause nor the fact that no medical certificate accompanied the returns entitles the Department, without express notice to the teacher of its proposed enquiry into the matter, to act on the assumption that there existed no exceptional cause to explain a decline in averages shown by those returns; (f) that unless in fact the manager, when transmitting his returns, had already, in anticipation of the Departmental inquiry, put the whole case for the teacher on his behalf, the Department, in order to ascertain the facts must notify the teacher affected that the returns disclose certain facts and figures, upon which the Department, having regard in particular to Rule 82 (9), must examine the position in order to determine whether the teacher's salary is to be continued or withdrawn, and the notice should also invite the teacher to submit any material evidence on his own behalf for the consideration of the Department in determining this question.

Held also, that once the Department is satisfied that a fall in averages below the minimum for one of the two quarters in question was due to an exceptional cause, it has no option but to decide that payment shall be continued, for the condition precedent to continuance has then been fulfilled.

Held further, that no valid decision under Rule 82 had been made; that the plaintiff was not given an opportunity of stating his case, that the Court had full power to make a declaratory order, having regard to the jurisdiction conferred on it by the Constitution (though admittedly it could not make an order for payment of the plaintiff's salary as the money was subject to the Appropriation Acts)—and that a declaratory order as to the plaintiff's rights should, in the exercise of its discretion, be made by the Court.

Accordingly the Court made a declaration that, on the construction of the above Rule 82, the periodical salary payable under the Rule of 1932 to the plaintiff as a duly appointed assistant teacher had not been lawfully withdrawn; and a further declaration that payment of the said salary to the plaintiff, in respect of his services as such assistant teacher after the 30th day of September, 1934, was discontinued without lawful authority by the Department of Education, acting for the defendant, the Minister for Education.

Cur. adv. vult.

Gavan Duffy J. :—

The plaintiff, now a principal teacher of Drumnacurra National School, Co. Kerry, brings this action against the Minister for Education and against the Very Rev. Canon Breen for a declaration as to his rights as a paid assistant

teacher in Ballyduff National School, Co. Kerry, where he was employed in teaching from 1914 to 1934 and afterwards, and he sues because his salary was withdrawn in October, 1934, as the result of a fall during the two preceding quarters in the numbers of pupils at the school below a certain average required by the Rules governing national schools. He sues the Minister as successor to the Commissioners of National Education (generally known as the National Board) and to their successors after the Treaty, the National Education Commissioners, and he sues Canon Breen as the manager of the school under the system of the National Board and the person with whom he entered into the contract that made him an assistant teacher at the school. Before considering the nature of the c]aim and the rights of the parties it is necessary to trace briefly the relevant enactments. Canon Breen has not entered an appearance and there is a motion for judgment against him, but this action has been contested only between the plaintiff and the Minister, and the questions with which I have to deal immediately concern the legal position as between the Minister and the plaintiff.

In the year 1845 a number of gentlemen were by royal charter constituted a body corporate by the name of"Commissioners of National Education in Ireland" with perpetual succession and with a common seal for the affairs and business of national education in Ireland, and in 1861 by a supplementary charter a new body corporate was created by the same name and with the same powers as the earlier corporation, the membership being increased to not more than twenty persons. Though established by charter, these bodies in succession appear to have been endowed with exclusive control of primary education in this country; in practice they were, no doubt, subordinate to the central authority, which had the power of the purse and contributed the greater part of the requisite funds.

After the Treaty, by order of the Executive Council, dated the 16th August, 1923, all the jurisdictions, powers and duties of the Commissioners of National Education in Ireland were transferred to a new Board, called the National Education Commissioners, and consisting of two Commissioners to be...

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