The Constitution of India - Article 226 - The Right of Children to Free and Compulsory Education Act, 2009 - The Kerala Right of Children to Free and Compulsory Education Rules, 2011 - A writ petition for enforcing contract of personal service is not maintainable against the school discharging a public duty.
Question of Law
Whether the disciplinary action initiated by the management against the erring teachers in a school affiliated to the Central Board of Secondary Education can be called in question by them in proceedings under Article 226 of the Constitution of India ?
Held:- The teacher of a school affiliated to CBSE is neither a public servant working under the Union of India or State nor an employee employed by a body which is a State within Article 12 of the Constitution of India. The teacher is also not a 'workman' as defined in the Industrial Disputes Act, 1947 who alone can invoke the machinery under the said Act challenging termination of his service. The contract of personal service cannot be enforced in other circumstances even against an authority discharging public function under Article 226 of the Constitution of India. The disciplinary actions right from the order of suspension to the order of termination from service are challenged in the instant case which is beyond judicial review. Only grievance subsisting if any in the domain of public law with reference to the provisions of the R.C.E.Act and R.C.E.Rules can if at all be agitated in proceedings of this nature.
Overruled
- Bincy Raj v. CBSE, 2015 KHC 3683
- Chithra v. State of Kerala, 2017 (3) KHC 687
IN
THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE R.
NARAYANA PISHARADI
THURSDAY,THE
28TH DAY OF FEBRUARY 2019 / 9TH PHALGUNA, 1940
WP(C).No. 40144 of 2016
PETITIONER
SOMMY
KUNJAPPAN
BY
ADVS. SRI.V.M.KRISHNAKUMAR SMT.SURYA BINOY
RESPONDENTS:
1
CENTRAL BOARD OF SECONDARY EDUCATION, HEAD OFFICE, "SHIKSHA KENDRA",
2, COMMUNITY CENTRE, PREET VIHAR, DELHI-110 092.
2
DISCIPLINARY COMMITTEE, REPRESENTED BY ITS CHAIRMAN, GIRIDEEPAM BETHANY CENTRAL
SCHOOL, BETHANY HILLS, VADAVATHOOR P.O.,KOTTAYAM DISTRICT, PIN-686 010.
3
GIRIDEEPAM BETHANY CENTRAL SCHOOL, REPRESENTED BY ITS PRINCIPAL, BETHANY HILLS,
VADAVATHOOR P.O.,KOTTAYAM DISTRICT, PIN-686 010.
4
THE DISCIPLINARY AUTHORITY, GIRIDEEPAM BETHANY CENTRAL SCHOOL, BETHANY HILLS, VADAVATHOOR
P.O., KOTTAYAM DISTRICT, PIN-686 010.
5
REV. FR. BENEDICT, FORMER PRINCIPAL, GIRIDEEPAM BETHANY CENTRAL SCHOOL, BETHANY
HILLS, VADAVATHOOR P.O., KOTTAYAM, PIN-686 010.
R1
BY ADV.SRI.NIRMAL S.
R3
BY ADV. SRI.LIJI.J.VADAKEDOM ADV. SRI.V.A.MUHAMMED, AMICUS CURIAE
WP(C).No. 11920 of 2018
PETITIONER:
REMADEVI
K.N., TEACHER (MATHEMATICS), BHARATIYA VIDYA BHAVAN, VIDYA MANDIR, POOCHATTY,
THRISSUR - 680 751.
BY
ADV. SRI.P.RAMAKRISHNAN
RESPONDENTS:
1
BHARATIYA VIDYA BHAVAN, THRISSUR KENDRA, NEAR VADAKKECHIRA, THRISSUR - 680 020,
REPRESENTED BY ITS SECRETARY.
2
K.S. UNNI, SECRETARY, BHARATIYA VIDYA BHAVAN,THRISSUR KENDRA, NEAR
VADAKKECHIRA, THRISSUR - 680 020.
3
CENTRAL BOARD OF SECONDARY EDUCATION, SHIKSHA KENDRA, 2 COMMUNICTY CENTRE,
PREET VIHAR, DELHI - 110 092, REPRESENTED BY ITS DIRECTOR.
BY
ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN
THOMAS SRI.PAULOSE C. ABRAHAM SRI.P.GOPINATH (SR.) SRI. NIRMAL S.
SRI.
V.A.MUHAMMED, AMICUS CURIAE
O R D E R
Chitambaresh,
J.
“Whether
the disciplinary action initiated by the management against the erring teachers
in a school affiliated to the Central Board of Secondary Education can be
called in question by them in proceedings under Article 226 of the Constitution
of India?”
The
above is the question referred to us for resolution in view of the conflict
between various decisions of this Court with specific reference to the schools
affiliated to the Central Board of Secondary Education. The maintainability of
a writ petition against an 'authority' not coming within Article 12 of the
Constitution of India nevertheless discharging public function is however no
more res integra.
2. The following abbreviations are used:
i.
Central Board of Secondary Education = CBSE.
ii.
The Right of Children to Free and Compulsory Education Act, 2009 = R.C.E.Act.
iii.
The Kerala Right of Children to Free and Compulsory Education Rules, 2011 =
R.C.E.Rules.
3. We heard Mr.P.Ramakrishnan, Advocate and Ms.Surya Binoy,
Advocate for the petitioners, Mr.Liji J. Vadakedom, Advocate and Smt. Parvathy
Kottol, Advocate for the managements, Mr.Nirmal S., Advocate for CBSE as well
as Mr.V.A.Muhammed, Advocate as amicus
curiae.
4. We have already held by order dated 21.2.2019 in WP(C).Nos.17398
and 21369 of 2017 that the school affiliated to CBSE does not require
recognition from the State Government under the Kerala Education Act, 1958. But
such a school requires recognition from the State Government under Section 18
of the R.C.E.Act read with Rule 14 of the R.C.E.Rules on application made. There
is no serious dispute that the school affiliated to CBSE imparting elementary
education under the R.C.E.Act is an 'authority' amenable to the writ
jurisdiction of this Court. But how far the writ jurisdiction under Article 226
of the Constitution of India can be exercised in relation to the disciplinary
action initiated against the erring teachers is the question subsisting.
5. We may at the outset state that CBSE is only a society registered
under the Societies Registration Act, 1860 and the school affiliated to it is
not a creature of the statute and hence a statutory body. The distinction
between a body created by the statute and a body governed in accordance with a
statute is explained in Executive Committee of Vaish Degree College v. Lakshmi Narain [(1976)
2 SCC 58] as follows:
“It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountainhead of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body.”
The
school is affiliated to CBSE for the sake of convenience mainly for the purpose
of recognition of the courses of study and the provisions of the R.C.E.Act and
R.C.E.Rules apply to the same just like any other school.
6. Section 21 of the R.C.E.Act provides for the constitution of
a School Management Committee consisting of the elected representatives of the
local authority, parents or guardians of children and teachers. The School
Management Committee shall perform the functions enumerated under Section 21 of
the R.C.E.Act and such other functions as may be prescribed by the R.C.E.Rules.
Section 24 of the R.C.E.Act enumerates the duties of a teacher who shall be
liable to disciplinary action under the service rules on default committed in
performance of his duties. Section 38 of the R.C.E.Act empowers the State
Government to frame rules including that of the terms and conditions of service
of teacher in a school affiliated to CBSE. Rule 19 of the R.C.E.Rules provides
for the Grievance Redressal of Teachers whereunder they can move the head
teacher, sub-committee, appeal and a second appeal. But service matters, orders
of suspension from service and all penalties under disciplinary proceedings
initiated by the School Management are specifically excluded from its purview.
Therefore there is no statutory provision either in the R.C.E.Act or in the
R.C.E.Rules relating to disciplinary action the infraction of which alone can clothe
the writ court with jurisdiction.
7. A copy of the Bye-laws dated 18.10.2018 by which the school
has been affiliated to CBSE has been made available and Clause 5.3 therein
provides for the framing of service rules for teaching and non-teaching staff.
Such service rules referred to in Section 24(2) of the R.C.E.Act has hitherto
not been framed and approved in respect of the school for the writ court to
test the infraction if any. It is trite law that the Bye-laws (standing alone)
is in the realm of contract between the school and CBSE to which it is affiliated
and does not derive any statutory flavour at all. A scanning of the provisions
of the R.C.E.Act as well as the R.C.E.Rules and the absence of the service rules
framed indicate that disciplinary proceedings are out of bounds for the writ
court. This does not mean that the aggrieved teachers are without any remedy inasmuch
as the jurisdiction of the civil court in relation to disciplinary proceedings
is very much available. The writ jurisdiction can of course be invoked for
proved infraction of the provisions in the R.C.E.Act and R.C.E.Rules for
reliefs like withdrawal of recognition to the school by CBSE.
8. It needs no elaboration to state that a school affiliated to
CBSE which is unaided is not a State within Article 12 of the Constitution of
India {See Satimbla Sharma v. St. Pauls Senior Secondary School [2011 (3) KLT
674(SC)]}. Nevertheless the school discharges a public duty of imparting
education which is a fundamental right of the citizens {See K.Krishnamacharyulu
v. Sri Venkateswara Hindu College of Engineering [(1997) 3 SCC 571]}. The
school affiliated to CBSE is therefore an 'authority' amenable to the
jurisdiction under Article 226 of the Constitution of India {See Binny Ltd. and
another v. Sadasivan and others [2005 KHC 1303(SC)]}. However a judicial review
of the action challenged by a party can be had by resort to the writ
jurisdiction only if there is a public law element and not to enforce a
contract of personal service. A contract of personal service includes all
matters relating to the service of the employee - confirmation, suspension,
transfer, termination etc.{See Apollo Tyres Ltd. v. C.P.Sebastian [(2009)14 SCC
360]}.
9. The Supreme Court has recently surveyed the case law on the
point in K.K.Saksena v. International Commission on Irrigation and Drainage and
others [(2015) 4 SCC 670] wherein it was held as follows:
“43.
What follows from a minute and careful reading of the aforesaid judgments of
this Court is that if a person or authority is 'State' within the meaning of
Article 12 of the Constitution, admittedly a writ petition under Article 226
would lie against such a person or body. However, we may add that even in such
cases writ would not lie to enforce private law rights. There are a catena of
judgments on this aspect and it is not necessary to refer to those judgments as
that is the basic principle of judicial review of an action under the
administrative law. The reason is obvious. A private law is that part of a
legal system which is a part of common law that involves relationships between
individuals, such as law of contract or torts. Therefore, even if a writ
petition would be maintainable against an authority, which is 'State' under
Article 12 of the Constitution, before issuing any writ, particularly writ of
mandamus, the court has to satisfy that action of such an authority, which is
challenged, is in the domain of public law as distinguished from private law.
52. It is trite that contract of personal
service cannot be enforced. There are three exceptions to this rule, namely:
i.
when the employee is a public servant working under the Union of India or State;
ii.
when such an employee is employed by an authority/body which is a State within
the meaning of Article 12 of the Constitution of India; and
iii.
when such an employee is 'workmen' within the meaning of Section 2(s) of the Industrial
Disputes Act, 1947 and raises a dispute regarding his termination by invoking the
machinery under the said Act.
In
the first two cases, the employment ceases to have private law character and
'status' to such an employment is attached. In the third category of cases, it
is the Industrial Disputes Act which confers jurisdiction on the Labour
Court/Industrial Tribunal to grant reinstatement in case termination is found to
be illegal.”
(emphasis supplied)
The
following decisions have also been adverted to in Saksena's case (supra):
i.
Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak
Trust v. Rudani [(1989) 2 SCC 691].
ii.
G. Bassi Reddy v. International Crops Research Institute [(2003) 4 SCC 225].
iii.
Praga Tools Corporation v. Imanual [(1969) 1 SCC 585].
iv.
Federal Bank Ltd. v. Sagar Thomas [(2003) 10 SCC 733].
The
decision in Ramesh Ahluwalia v. State of Punjab [(2012) 12 SCC 331] is clearly
distinguishable inasmuch as the employee therein was only directed to file an
appeal before the Education Tribunal constituted.
10. The teacher of a school affiliated to CBSE is neither a public
servant working under the Union of India or State nor an employee employed by a
body which is a State within Article 12 of the Constitution of India. The
teacher is also not a 'workman' as defined in the Industrial Disputes Act, 1947
who alone can invoke the machinery under the said Act challenging termination
of his service. The contract of personal service cannot be enforced in other
circumstances even against an authority discharging public function under
Article 226 of the Constitution of India. To the same effect is Ramesh Sanka v.
Union of India and others [2019 (1) KHC SN 26(SC)] though rendered in the
context of Article 32 of the Constitution of India. The very issue is concluded
by Sophiamma v. Council for the Indian School and another [2008(2) KLT 589] and
Toji Joseph and another v. State of Kerala and others [ILR 2009 (3) Ker. 54].
The disciplinary actions right from the order of suspension to the order of
termination from service are challenged in the instant case which is beyond
judicial review. Only grievance subsisting if any in the domain of public law
with reference to the provisions of the R.C.E.Act and R.C.E.Rules can if at all
be agitated in proceedings of this nature.
11. We approve the dictum in Sophiamma's case (supra) and Toji
Joseph's case (supra) that a writ petition for enforcing contract of personal
service is not maintainable against the school discharging a public duty. We
overrule the decisions in Bincy Raj and others v. CBSE and others [2015 KHC
3683] and Chithra v. State of Kerala and others [2017 (3) KHC 687] to the
extent they hold otherwise. The latter decisions to the effect that
disciplinary action can be challenged in writ proceedings have been rendered
without noticing the proviso to Rule 19(2) of the R.C.E.Rules.
12. The contribution of Mr.V.A.Muhammed, Advocate as amicus curiae who took us through the relevant
provisions in the various enactments is praise worthy.
The
reference is answered accordingly. The Registry to post the writ petitions for
hearing as per roster.