Karnataka High Court
The Senior Principal vs Smt Anuradha M V on 8 December, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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WP No. 24281 of 2022
C/W WP No. 23058 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
®
WRIT PETITION No.24281 OF 2022
C/W
WRIT PETITION No.23058 OF 2021 (S-RES)
IN W.P.No:24281/2022:
BETWEEN:
1. SMT.ANURADHA.M.V.
W/O GURUDATTA.P.V
AGED ABOUT 46 YEARS,
#1, 1ST FLOOR, VINAYAKANAGAR,
5TH MAIN, IAF POST,
YELAHANKA, BENGALURU-560 063.
...PETITIONER
(BY SRI.M.P.SRIKANTH., ADVOCATE)
AND:
Digitally
signed by 1. THE STATE OF KARNATAKA,
KIRAN BY ITS PRINCIPAL SECRETARY
KUMAR R
Location: TO THE GOVERNMENT
HIGH PRIMARY & SECONDARY EDUCATION
COURT OF
KARNATAKA DEPARTMENT,
M.S.BUILDING, DR.AMBEDKAR ROAD,
BENGALURU-560 001.
2. THE COMMISSIONER
FOR PUBLIC INSTRUCTIONS
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BENGALURU-560 001.
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WP No. 24281 of 2022
C/W WP No. 23058 of 2021
3. THE DIRECTOR, PRIMARY EDUCATION,
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BENGALURU-560 001.
4. THE MANAGEMENT,
NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
REP BY ITS SECRETARY.
5. NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
REP BY ITS PRINCIPAL.
6. MS.MALATHY R NARAYAN,
THE PRINCIPAL (SENIOR SCHOOL)
NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
7. MS.MINI JAYAN,
THE PRINCIPAL (PRIMARY SCHOOL)
NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
8. MR.MUTTAPPA,
MANAGER-NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
9. SMT.SHANTAMMA GOPALAKRISHNA,
SENIOR PRINCIPAL,
NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
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WP No. 24281 of 2022
C/W WP No. 23058 of 2021
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
10. DR.BINDU HARI,
DIRECTOR-NATIONAL PUBLIC SCHOOL
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
11. DR.K.P.GOPALAKRISHNA,
CHAIRMAN-NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
12. THE REGIONAL OFFICER,
CENTRAL BOARD OF SECONDARY EDUCATION,
DEGREE COLLEGE BUILDING,
HESARAGHATTA MAIN ROAD,
NEAR SAPTHAGIRI HOSPITAL
CHIMNEY HILLS,
CHIKKABANAVARA, BENGALURU-560 090.
13. THE DEPUTY DIRECTOR OF PUBLIC
INSTRUCTIONS,
BANGALORE NORTH-1 OFFICE,
RAJAJINAGAR, BENGALURU-560 010.
14. THE BLOCK EDUCATION OFFICER,
BANGALORE NORTH-1 OFFICE,
RAJAJINAGAR, BENGALURU-560 010.
15. MS.T.N.GAYATHRI DEVI,
THE JOINT DIRECTOR
(SARVA SHIKSHANA ABHIYANA)
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BENGALURU-560 001.
...RESPONDENTS
(BY SRI.B.RAVINDRANATH, AGA FOR R-1 TO R-3, R-13 & R-14;
VIDE ORDER DATED 06.02.2023, NOTICE TO PRIVATE
RESPONDENTS IS DISPENSED WITH)
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WP No. 24281 of 2022
C/W WP No. 23058 of 2021
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ORDER DATED:21.10.2022 ON APPEAL No.5/2021 PASSED
BY THE R-3 VIDE ANNEXURE-AX, ETC.
IN W.P.No.23058/2021
BETWEEN:
1. THE SENIOR PRINCIPAL
NATIONAL PUBLIC SCHOOL,
RAJAJINAGAR,
BENGALURU-560 010.
2. THE MANAGER (HRD)
NATIONAL PUBLIC SCHOOL,
RAJAJINAGAR,
BENGALURU-560 010.
...PETITIONERS
(BY SRI.AMIT ANAND DESHPANDE., ADVOCATE)
AND:
SMT.ANURADHA.M.V.,
W/O GURUDATTA.P.V,
AGED ABOUT 45 YEARS,
#1, 1ST FLOOR, VINAYAKANAGAR,
5TH MAIN, IAF POST,
BEGLUR MAIN ROAD,
YELAHANKA,
BENGALURU-560 063.
...RESPONDENT
(BY SRI.B.R.VISHWANATH, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED ORDER PASSED BY THE LEARNED XV ADDL.
CITY CIVIL AND SESSIONS JUDGE AT BANGALORE (CCH No.3)
IN MA(EAT)12/2017 DATED:19.11.2021 VIDE ANNEXURE-A,
ETC.
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WP No. 24281 of 2022
C/W WP No. 23058 of 2021
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 12.10.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. W.P.No.24281/2022 is preferred by the Teacher
(hereinafter referred to as, "the employee"), whereas
W.P.No.23058/2021 is preferred by the Management of
the respondent-Education Institution (hereinafter referred
to as, "the Institution").
2. On 30.06.2013, the employee was appointed as a
faculty member in the department of Pre-primary -
Primary - Secondary - Senior Secondary/support staff.
The order of appointment stated that the employee would
initially be in probation for a period of one year and on
satisfactory completion of such probationary period, she
would be appointed as a permanent faculty member. The
employee also executed a service contract on the same
day. The relevant clauses are extracted and considered
later in this order.
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3. It is the case of the employee that on 23.03.2017,
she was orally informed by the Principal that she could not
be retained for the ensuing academic year 2017-18 and in
response, she had addressed an e-mail indicating her
willingness to continue till her retirement. She also
contended that there were e-mails exchanged in this
regard for nearly three months.
4. The employee, on 20.07.2017, was issued with a
Memorandum, which reads as under:
"You have been employed as a teacher in National
Public School Organisation since 3rd July 2014. Your
performance as a teacher has been consistently
declining. You have been misbehaving with the staff
during school hours within the premises. You have
also used unparliamentary and uncivilized language
against the Principal of the School and also the
Principal of the primary section. You refused to
accept the notice served on 17.07.2017 under which
your explanation was called for. It has therefore
been decided to initiate disciplinary action against
you.
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Pending disciplinary action, you are hereby directed
not to report for duty at the school and you are
exempted from attending the school with immediate
effect. You will be paid salary payable to you during
the period of exemption from duty.
You shall continue to be exempted from attending
the school until further orders. Your address in our
records is as under:
Ms.Anuradha.M.V
No.1, 1st Floor, Vinayakanagar,
5th Main, IAF Post,
Baglur Main, Yelahanka,
Bengaluru-560 063
If there is any change in your address, please
inform the undersigned. In the absence of such
communication, all communication to you will be
sent to the above address and also through the
email ID [email protected] and the same
shall be treated as valid communication for all
purposes."
5. She, thus, submitted that on 20.07.2017, the
Management had informed her that they would be
initiating disciplinary action and also called upon her to not
report for duty, and that she was exempted from
attending the Institution, with immediate effect. She also
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submitted that about two months thereafter, on
04.09.2017, she was served with a communication in the
following terms:
"Please refer to your appointment in National Public
School, 5th Block, Rajajinagar, Bengaluru-560 010
as faculty member vide appointment dated 30th
June 2014.
As per the above appointment order, you reported
for duty on 3rd July 2014.
As per the service conditions of your appointment,
you were on probation from 3rd July 2014. However
your probation has not been declared as
satisfactory till now, as your services are not
considered up to the mark. Consequently, as of
today, you continue to be on probation.
Since your appointing authority considers your
services are not satisfactory and no longer
required, your services therefore are hereby
terminated with immediate effect."
6. Thus, by virtue of this communication dated
04.09.2017, the Management stated that the services of
the employee were not satisfactory and that she was no
longer required, following which her services were
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terminated. It was also stated that since her probationary
period had not been declared as satisfactory, she had
continued to be on probation.
7. Being aggrieved by this order of termination, the
employee filed an appeal before the Educational Appellate
Tribunal (for brevity, referred to as "the Tribunal") on
30.10.2017.
8. This appeal was contested vigorously by the
Management and ultimately, by the impugned order dated
19.11.2021, the appeal filed by the employee was allowed
and the order of termination passed against her on
04.09.2017 was set aside. In addition, the Management
has also been directed to take back the employee into
service and allot classes as per their procedure, along with
a direction to the Management to pay salary to the
employee. The Management, being aggrieved by the
allowing of the appeal by the employee, preferred W.P.
No. 23058/2021.
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9. The employee preferred W.P.No.24281/2022 seeking
quashing of the order dated 21.10.2022, by which her
representation was considered as an appeal under Section
130 of the Education Act, 1983, and was dismissed by the
Competent Authority.
10. A further prayer in the present petition is also made
to direct the respondents to consider the representation
made by her vide Annexures-AP, AP1 and AQ.
11. It is the case of the Management that the employee
was appointed on 30.06.2004 with a clear stipulation that
she will be on probation for a period of one year and since,
admittedly, the period of probation was not declared as
being successful, she continued to be in probation and
hence, the Management was well within its power to
discharge the employee. It is contended that even if a
probationer is continued beyond the period of probation,
he would not be entitled for any privileges that are
available to a regular employee. It is also averred that
there is no deemed confirmation and until a specific order
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of confirmation is made, the employee would continue to
be on probation. It is, therefore, contended that since the
services of the employee were not confirmed on the expiry
of the probationary period, she cannot contend that she
has a right to continue in service.
12. It is also contended that the order of termination
passed against the employee was not stigmatic and the
employee, being only a probationer, had no indefeasible
right to seek confirmation and was entirely within the
discretion of the Management to either confirm her service
or discharge her. It is also contended that the removal of
the employee was not punitive in nature and it was only
because her services were found to be unsatisfactory.
13. It is further contended that the order of the Tribunal
was unsustainable, since the Tribunal did not allow parties
to adduce evidence and therefore, the order was not
sustainable.
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14. Learned counsel for the employee, on the other
hand, contended that the employee cannot be considered
as a probationer, in light of the fact that the service
contract categorically stated that the period of probation
would not, in any case, be extendable beyond two years.
He contended that as a result of this clause in the service
contract, the employee could be a probationer only for the
first two years of service and thereafter, her employment
would not be that of a probationer.
15. Learned counsel also submitted that the issuance of
the letter dated 20.07.2017 leaves no room for doubt that
the Management proposed to initiate disciplinary
proceedings against the employee on specific charges and
without holding an enquiry on the charges, the
Management could not terminate the services of the
employee on the ground that she was a probationer, and
she was, hence, liable to be discharged.
16. It is also contended that a conjoint reading of a
Memorandum dated 20.07.2017 and the earlier exchange
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of e-mails between the employee and the Management
would clearly establish that it had been the intention of the
Management to somehow dispense with the services of the
employee, and the issuance of order dated 04.09.2017
was only a ruse to get rid of the employee and therefore,
the Tribunal was justified in holding that the termination
was illegal.
17. It is also contended that the question of the Tribunal
permitting to adduce evidence to prove the charges would
not arise, since the Management had not discharged the
services of the employee on the ground of misconduct. It
is also contended that since the termination was on the
premise that the employee was a probationer, the only
question to be decided by the Tribunal was whether the
discharge of the services of the employee was legal.
18. In light of the arguments advanced by both parties,
the principal question which arises for consideration in the
writ petition is:
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Whether the Tribunal was justified in
coming to the conclusion that the termination
of the employee's service, by the order dated
04.09.2017, was bad in law?
19. As already stated above, the employee was
appointed on 30.06.2014 and the order of appointment, as
well as the service contract which was entered into on the
same day, did specify that the employee would be on
probation for a period of one year. The relevant clause in
the service contract reads as follows:
"The party no.1 shall begin her employment in
this institution on Third day of July two
thousand and Fourteen. He or she shall be
employed in the first instance on probation for a
period of one year on purely temporary basis
and shall be paid a monthly salary and
allowances of Rs.5,20,608/-CTC in the scale of
pay of Rs.________ Plus allowances in
accordance with the rates as prescribed by the
Management from time to time and applicable
to his/her case. The period of probation may be
extended by the governing council/principal for
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a further period not exceeding one year, if your
service is found not satisfactory. The total
probationary period shall in no case exceed two
years."
20. As could be seen from this clause in the service
contract, it categorically states that the period of probation
could be extended by the Governing Council or the
Principal for a further period not exceeding one year, if the
services of the employee were not satisfactory. More
importantly, this clause relating to probation also
specifically states that the total probationary period shall
in no case exceed two years. This would clearly indicate
that the employee could only be a probationer for a
maximum period of two years. If the clause categorically
stated that the probationary period would not exceed two
years, it automatically follows that the period of probation
comes to an end on the expiry of two years. As a further
consequence, if the services of the employee are
continued even beyond the period of two years, it is clear
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that the said employee cannot be considered as a
probationer.
21. It may also be kept in mind that Clause (2) of the
service contract categorically states that if the work and
conduct of the employee during the period of probation or
extended period of probation was found to be
unsatisfactory, the services of the employee was liable to
be terminated. Admittedly, either during the initial period
of one year of probation or the assumed extended period
of probation of one more year, there is nothing on record
to indicate that the services of the employee were, in any
way, unsatisfactory and that her services were required to
be terminated.
22. Clause (3) of the service contract categorically states
that after the satisfactory completion of probationary
period, the employee shall be confirmed with effect from
the expiry of the said period of probation or the extended
period of probation. This indicates that if the employee's
services are not terminated within the period of one year
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or the extended period of one more year, the services of
the employee are mandatorily required to be confirmed.
It, therefore, follows that there is no need for an express
order of confirmation and mere continuation of the
probationary period beyond the period of two years would
lead to a situation where the services of the employee
stood confirmed, with effect from the date of expiry of
either the period of probation or the extended period of
probation. In other words, on completion of two years as a
probationer, the services of the employee, if continued,
would indicate that she had been confirmed even though
no specific order of confirmation is passed.
23. The language used in Clause (3) of the service
contract leaves no room for doubt that the continuation of
services of an employee beyond the period of two years
results in an automatic confirmation, with effect from the
expiry of the period of probation or the extended period of
probation.
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24. Thus, since the employee was appointed on
30.06.2014, on the expiry of the maximum period of
probation of two years, her services stood confirmed with
effect from 30.06.2016. In light of this Clause of the
service contract mentioned above, the argument of the
learned counsel for the Management that unless an
express order of confirmation is passed, the services of an
employee would continue to be a probationer, is
unsustainable.
25. Learned counsel for the Management sought to place
reliance upon the following judgments:
a. G. Bijuna v. Union of India and Ors., W.P.
No.62189/2016 (HCK-Bng), dt.28.09.2021;
b. Khazia Mohammed Muzammil v. the State of
Karnataka and Ors., (2010) 8 SCC 155,
dt.08.07.2010;
c. Chaitanya Prakash and Ors. v. H.
Omkarappa,(2010) 2 SCC 623,dt.12.01.2010;
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d. Vidyalakshmi Educational Society and Ors. v. Vijay
and Ors., W.P. No. 65494/2009 (HCK-Dh),
dt.16.03.2018;
e. Sowmya R. v. the Registrar General and Ors.,
W.A. No.1154/2023 (HCK-Bng), dt.21.09.2023;
f. Gramin Yuvak Vikas Shikshan Mandal Kinhi Nayak
and Ors. v. Shivanarayan Dutta Raut and Ors.,
MANU/MH/1943/2023,dt.30.05.2023; and
g. Sidagouda N. Patil v. Union of India, ILR 2014
KAR 1044, dt.23.07.2013.
On the strength of these judgments, it is contended by the
learned Counsel for the Management that the employer
has a right to discharge the services of an employee
whose probationary period had not been declared as being
successful and that an employer's services cannot
automatically be deemed to be made permanent upon the
completion of his probationary period.
26. In the cases of the Apex Court as well as of this
Court relied upon by the learned counsel for the
Management, the respective Courts were dealing with the
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statutory rules which were not similar to the service
contract found in the present case, which categorically
declared that an employee, under no circumstances, can
be considered as a probationer after two years. Therefore,
reliance placed on the propositions of law propounded on
the interpretation of a statutory rule, which is completely
different from the contractual clause in the present case,
would be of no relevance.
27. Learned counsel also relied upon the judgment
rendered by a Co-ordinate Bench of this Court in
W.P.Nos.65494-496/2009 to contend that the Tribunal
was obligated to allow the parties to adduce evidence.
28. It is to be noticed here that in the case relied upon,
the Court was considering a case where the Tribunal
allowed the appeals of the employees and declared that
removal of the employees was illegal and in that particular
case, it was the specific contention of the Management
that the documents produced by the employees were all
fake, concocted and forged for the purpose of securing an
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appointment. In context of the defence taken by the
Management that the documents were fake, concocted
and forged, this Court took the view that it was necessary
for the Tribunal to permit the parties to adduce evidence
regarding the veracity of the documents. However, in the
present case, where the Management admits the order of
termination and puts forth the contention that the
employee was only a probationer and therefore, her
services could be discharged without assigning any reason,
the question of allowing either the Management or the
employee to adduce evidence would not arise.
29. Learned counsel also sought to contend that the
Management had raised the plea that the appeal itself was
not maintainable, as the Institution was affiliated to the
Central Board of Secondary Education ("the CBSE", for
brevity) and the provisions of the Karnataka Education
Act, 1983 ("the Act", for short), was inapplicable to it,
and that this was also not considered by the Tribunal.
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30. As this is a pure question of law and it has already
been held by decisions of the Division Bench of this Court
in that the provisions of the Act would be applicable even
to institutions to which the Act is exempted, this argument
cannot be accepted.
31. However, since questions in this regard have been
raised, it would be appropriate to consider them.
32. It cannot be in dispute that the provisions of the Act,
barring a few provisions, have been made inapplicable to
the institutions affiliated to the CBSE, but it will have to be
examined whether that exemption would also extend to
the resolution of disputes between a management and an
employee.
33. In the year 1929, by way of a resolution, the
Government of India established at Ajmer, "A Board of
High School and Intermediate Education in Rajputana,
Central India and Gwalior" to supervise and regulate
examinations in those regions. In the year 1935, it was
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registered as a Society under the Societies Registration
Act of 1860. The name of the Society was then changed to
the Central Board of Secondary Education, Ajmer.
34. Subsequently, in the year 1962, a revised
constitution of the Board was adopted with the objects of
conducting examinations at Secondary Stage or such other
examinations subject to the control of the Controlling
Authority (Government of India). The services of the
Board could be availed by any educational institution in
India or abroad and it was conferred with the powers to
recognize such institutions for the purpose of its
examinations.
"Objects: -(1) The Board shall conduct
examinations at Secondary stage of education and
such other examinations as it may consider fit,
subject to the approval of the Controlling Authority
to as it may be called upon to conduct by the
Government of India in the Ministry of Education and
do such Acts ancillary to the objects as may be
necessary.
(2) The services of the Board may be availed of by
any Educational institution in India or outside India,
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which wishes to prepare candidates for the
examinations conducted by the Board and the Board
shall have the powers to recognise such Institutions
for the purpose of its examinations
(3) The Headquarters of the Board shall be shifted to
Delhi, but the Board's Office at Ajmer shall continue
for such time as it may be considered necessary by
the Board.
(4) The Education Advisor of the Government of
India shall continue to be the controlling authority
of the Board.
(5) The re-constitution of the Central Board of
Secondary Education shall take effect from the date
notified in this behalf by the Controlling Authority and
from that date the Chairman and members of
existing Board shall cease to hold office."
35. The Board was conferred with the power to conduct
examinations and grant certificates to persons who
pursued education in an institution that had been admitted
to the privileges of recognition by the Board and also to
prescribe courses of instruction for the said examinations.
The Board was also empowered to recognise institutions
for the purpose of its examinations, but such recognition
could not be accorded without the concurrence of the
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State Government, if such institution was in receipt of
regular maintenance grant-in-aid from the State
Government.
"9. POWERS AND FUNCTIONS OF THE BOARD:-
The Board shall have the following powers: -
(i) To conduct examinations and grant
diplomas/certificates to person who, after
pursuing a course of study in an institution
admitted to the privileges of recognition by the
Board or having fulfilled such conditions as may
be laid down by the Board, have passed the
examination of the Board;
(ii) To prescribe courses of instruction for
examinations conducted by the Board, provided
that the Board may prescribe different courses of
instruction for different classes of institutions;
(iii) To admit candidates to the examination
conducted by it and prescribe that conditions for
such examinations;
(iv) To recognise institutions for the purpose of its
examinations provided that the Board shall not
accord recognition to any institution, without the
concurrence of the State Government concerned
if such institution is in receipt of a regular
maintenance grant-in-aid from the State
Government;
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Explanatory Note: It shall be within the powers
of the Board to withdraw recognition if it is
satisfied after inspection carried out under clause
(vi) that the standards of management and
instruction in an institution justify withdrawal,
provided that in case of a Government institution
applying for recognition the recognition shall not
be withheld, or in case the institution is already
reconditioned the recognition shall not be
withheld, or in case be withdrawn, without prior
of approval of the Competent Authority;
(v) To demand and receive such fees as may be
prescribed by the Regulations;
(vi) To cause an inspection to be made by such
person or persons as the Board may nominate, of
recognised institution or institutions applying for
recognition;
(vii) To adopt measures to promote the physical
and moral well-being of students of recognised
institutions and supervise their residence, health
and discipline;
(viii) To organize and provide lectures,
demonstrations, educational exhibitions and take
such other measures as are necessary to promote
the standards of secondary education.
(ix) To institute and award scholarships, medals
and prizes under conditions that may be
prescribed and accept endowments for the same
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subject to such conditions as the Board may
deem fit.
(x) To make regulations for prescribing text-
books or other books of study and to arrange for
publication of such text-books.
(xi) To make regulations for imposing penalties
for misconduct of students, teachers, examiners
and examinees.
(xii) To prescribe qualifications for the
appointment of teachers in the institutions
recognised with the Board.
(xiii) To submit to Government of India its view
on any matter with which it is concerned or which
the Government of India or any State
Government or educational organization may
refer to it for its advice.
(xiv) To advise the Administrations of Union
Territories as to the course of instruction and
syllabi of middle school education with a view to
securing coordination between middle school and
secondary education.
(xv) To acquire properties, both movable and
immovable and invest the surplus funds of the
Board in Government securities or in bank
approved by the Controlling Authority.
(xvi) To do all such or other things as may be
necessary in order to further the object of the
Board as a body constituted for regulating and
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maintaining the standards of secondary
education."
36. Thus, essentially, the CBSE is a Society established
by the Government of India with the objective of being a
body to conduct examinations at the Secondary Stage and
to recognise institutions for that purpose. It does not,
therefore, have the force of a statute behind it.
37. The CBSE has framed the "Affiliation Bye-Laws-2018
of CBSE" (hereinafter referred to as "the Affiliation Bye-
laws" or "the Bye-laws") which enumerates the manner
in which affiliation could be granted to an educational
institution. In order to get an affiliation, Bye-law 2.3.4 is
required to submit formal prior Recognition Certificate
from the State Education Department as per the extant
rules and provisions contained under the RTE Act, 2009
and under Bye-law 2.3.5, the school would also be
required to get a No Objection Certificate from the State
Government for grant of affiliation.
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38. It is, therefore, obvious that since the State
Government is required to necessarily grant prior
recognition and secure an NOC from the respective State
Government before the CBSE can grant its affiliation, the
Education Act exempts the applicability of the Act to those
institutions. It also follows from this that the exemption of
the applicability of the Act would only relate to the aspect
of grant of recognition and affiliation to the school. If the
exemption was not provided, there would be a situation
whereby recognition and approvals would have to be
obtained from both the State Government and the CBSE.
39. Another important factor to be noticed here is Bye-
law 2.3.3 relating to the School Management Committee
which reads as follows:
"2.3.3 SCHOOL MANAGEMENT COMMITTEE
Subject to relevant provision in the Education
act/Rules of the appropriate government, every
school should have a scheme of management.
It should also have a School Management
Committee as stipulated under RTE Act
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2009 and as per provisions contained in these
Byelaws."
40. As could be seen from the above, the Bye-law
relating to the School Management Committee which is
required to manage the school, mandates that the said
Committee should be established, subject to the provisions
of the State Act. This clearly indicates that the
management of the School should be in compliance with
the State law and this, therefore, makes the matter of
administration of a School be subject to the provisions of
the State Act.
41. Chapter 5 of the Bye-laws deals with the Staff of a
school affiliated to the CBSE. Bye-law 5.2 lays down the
guiding principles in respect of related activities to the
staff recruitment. Clause 5.3, which would be important
for this case, reads as follows:
"5.3 The school define the service rules of
teaching & non-teaching staff on the lines of
the service rules of the employees of
Appropriate Government. The service rules
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shall be approved by the School
Management Committee and the
Trust/Society/company running the school
and invariably have specific and well
documented provisions in respect of the
following:
5.3.1 Appointments
5.3.2 Medical Certificate, Character Certificate, etc.
5.3.3 Probation(including Extension of Probation)
5.3.4 Confirmation, etc."
42. As could be seen from the said Bye-law, it is
mandated that the school should define the service rules
of both teaching and non-teaching staff to be on the lines
of the employees of the appropriate State Government.
This, therefore, makes it clear that insofar as the service
rules are concerned, the same should be in accordance
with the service rules of the employees of the State, and
thus, the conditions of service are to be essentially
governed by the rules formed for State employees.
43. In light of the fact that the State Government has
enacted a special Act relating to education and has therein
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provided for the terms and conditions of service of
employees of the Educational institutions and its
enforcement, it is clear that the procedures prescribed
under the Act would also govern the terms and conditions
of service of an employee of a school affiliated to the
CBSE.
44. Chapter 8 of the Bye Laws expressly states that
"Subject to the relevant provision in the Education Act of
the State/UT concerned, every affiliated school should
have a scheme of management as per the following
clauses." This, thereby, indicates that the management of
the school, through a Committee, shall be subject to the
provisions of the State Act, and thus, for the manner in
which a school has to be run, it is the provisions of the
State Act that would prevail and not the Bye-laws. Since,
it is an undeniable fact that one of the most important
factors in the management of a school is the relationship
between the school management and its employees, along
with the terms and conditions of the employment of such
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employees, the provisions of the State Act relating to the
terms and conditions of an employee of a school affiliated
to the CBSE would still necessarily be governed by the
provisions of the State Act, notwithstanding the exemption
granted under Section 1 of the Act.
45. In this regard, it would also be necessary to take
note of Bye-law 14.24 which is found in Chapter 14 which
provides for General Rules and which reads as follows:
"14.24 The school shall be solely responsible for
implementation and compliance of all the
Central/State Acts, Local and Special laws
applicable on the school along with
rules/regulations framed, any other
instructions issued there under and
executive instructions."
46. As could be seen from the said Bye-law, the School is
mandated to implement and comply with the Central/State
Acts, and also the Local and Special laws that are
applicable to the School. Since there are specific
provisions enacted under the Education Act in the matter
of governing the terms and conditions of service of
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employees of the educational institutions, it is obvious that
schools affiliated to the CBSE would still be subject to the
provisions of the Act, in this regard.
47. It is, therefore, clear that in the matter of the terms
and conditions of service and their enforcement, the
provisions of the Act would have to prevail, not only
because they have statutory force but also because the
Bye-laws make it clear that the provisions of the State Act
would be applicable.
48. In this regard, a Division Bench of this Court in D.
Jeevagan1, has held that since the All India Council for
Technical Education Regulations ("the AICTE
Regulations", for short) do not provide for any statutory
regulations to resolve disputes of the employees, such
aggrieved employees of an institution affiliated to the
AICTE would have a right to approach the Educational
Appellate Tribunal.
D. Jeevagan v. the Principal, MEI Polytechnic and Ors., ILR 2007 Kar 4870.
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49. Thus, for the reasons stated above, employees of a
school affiliated to the CBSE would also have the right to
approach the Educational Appellate Tribunal, if any
disciplinary action is taken against them.
50. Since the Tribunal has recorded a clear finding that
the services of the employee being terminated without
holding an enquiry was illegal, and the employee was,
thus, required to be reinstated, no fault could be found
with the order of the Tribunal. The Tribunal has taken into
consideration the totality of circumstances and has merely
ordered reinstatement of the employee, without awarding
any backwages.
51. I am, therefore, of the view that there is no
justification for entertaining the writ petition filed by the
Management and the said petition is, therefore,
dismissed.
52. As for the writ petition filed by the employee
challenging the order dated 21.10.2022, by which one of
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her representations has been treated as an appeal and has
been dismissed, the Competent Authority was not justified
in treating her representation as an appeal and coming to
the conclusion that an appeal was maintainable only
against the order passed under the provisions of the Act.
The employee made certain allegations against the
Management and sought intervention of the Competent
Authority under the Act and the Rules to consider her
grievances and take further action in the matter. However,
in the instant case, the representation submitted by the
employee has, itself, been considered as an appeal and
this appeal has been rejected on the ground that there
was no order passed by the Management, on the basis of
which a further appeal could have been filed, which is
completely incorrect.
53. The impugned order is, therefore, set aside and the
Competent Authority is directed to consider the
representations of the employee in accordance with law
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and pass appropriate orders in the light of the
observations made above and duly consider the same.
54. The writ petition of the employee is, accordingly,
disposed of.
Sd/-
JUDGE
PKS
