Kerala High Court
J. Leela vs State Of Kerala on 11 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 11TH DAY OF AUGUST 2022 / 20TH SRAVANA, 1944
WP(C) NO. 8036 OF 2020
PETITIONER:
SINDHU S., AGED 45 YEARS
W/O. ARUN V.R., SANGEETHA, AYYAPANKAVU NAGAR,
KILIMANOOR P.O., THIRUVANANTHAPURAM.
BY ADVS.P.M.SANEER
SHAJIN S.HAMEED
TONY GEORGE KANNANTHANAM
RESPONDENTS:
1 RAJA RAVI VARMA CENTRAL SCHOOL
KILIMANOOR, THIRUVANANTHAPURAM 695 014,
REPRESENTED BY ITS ADMINISTRATIVE OFFICER.
2 THE PRINCIPAL, RAJA RAVI VARMA CENTRAL SCHOOL,
KILMANOOR, THIRUVANANTHAPURAM-695 014.
3 THE REGIONAL OFFICER, CBSE REGIONAL OFFICE BLOCK B-
2, 2ND FLOOR, LIC DIVISION CAMPUS, PATTOM,
THIRUVANANTHAPURAM - 695 004.
4 THE REGIONAL DIRECTOR, CENTRAL BOARD OF SECONDARY
EDUCATION, ANNA NAGAR, SOUTH CHENNAI-600 040.
BY ADVS.DR.K.P.SATHEESAN (SR.)
SRI.NIRMAL S., SC, CBSE
SRI.K.SUDHIN KUMAR, R1 AND R2
SRI.P.MOHANDAS (ERNAKULAM)
SRI.K.SUDHINKUMAR
SRI.S.K.ADHITHYAN
SRI.SABU PULLAN
SRI.GOKUL D. SUDHAKARAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING
ON 11.08.2022, ALONG WITH WP(C).5925/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
2
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 11TH DAY OF AUGUST 2022 / 20TH SRAVANA, 1944
WP(C) NO. 5925 OF 2021
PETITIONER:
J.LEELA,AGED 60 YEARS
W/O. ISSAC, SWEEPER, ALAN FELDMAN PUBLIC SCHOOL,
KAZHAKUTTOM-695582, THIRUVANANTHAPURAM DISTRICT,
NOW RESIDING AT MARACHERIPUTHEYATHU HOUSE,
MANNAMKANDAM P.O., DEVIKULAM TALUK,
IDUKKI DISTRICT.
BY ADVS.SINDHU SANTHALINGAM
SHRI.ABRAHAM K GEORGE
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE REGIONAL OFFICER,
CBSE, REGIONAL OFFICE, NEW NO.3, OLD NO.1630-A,
J BLOCK, 16TH MAIN ROAD, ANNA NAGAR (WEST),
CHENNAI-600 040.
3 REGIONAL OFFICE,
CBSE (RO), 2ND FLOOR, BLOCK-B, LIC DIVISIONAL
OFFICE CAMPUS, PATTOM, THIRUVANANTHAPURAM-695004,
REPRESENTED BY ITS ASSISTANT SECRETARY.
4 THE DIRECTOR,
CBSE, SHIKSHA KENDRA-2, COMMUNITY CENTRE,
PREET VIHAR, DELHI-110092.
5 ALAN FELDMAN PUBLIC SCHOOL,
KAZHAKUTTOM-695 582, THIRUVANANTHAPURAM DISTRICT,
3
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
REPRESENTED BY ITS SECRETARY.
BY ADVS.SRI.NIRMAL S., SC, CBSE
SRI.V.SURESH
SRI.TPM.IBRAHIM KHAN (SR.)
SRI.ANILA UMESH
SRI.A.J.VARGHESE, Sr.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING
ON 11.08.2022, ALONG WITH WP(C).8036/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
4
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
"C.R."
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
--------------------------------------------------
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
-------------------------------------------
Dated this the 11th day of August, 2022
JUDGMENT
C.S.Sudha, J.
W.P.(C)No.8036/2020 is before us based on a Reference Order
dated 18/09/2020 of a learned Single Judge of this Court. The writ petition
was filed by the petitioner, a teacher of the first respondent School, namely,
Raja Ravi Varma Central School, Kilimanoor, Thiruvananthapuram (the
School), challenging Ext.P3 order of suspension issued by the second
respondent, namely, the Principal of the School. According to the petitioner,
Ext.P3 suspension order is bad as it is based on a cooked-up allegation; that it
has been issued by the second respondent in malafide exercise of power; that
the principles of natural justice have not been complied with before issuing
Ext.P3 order and that the school authorities are not finalizing the proceedings
without assigning any cogent reasons. The petitioner is also aggrieved by the
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
inaction on the part of the third and the fourth respondents, namely, the Central
Board of Secondary Education (CBSE) for their failure to take action against
the school for contravening the provisions of the CBSE Affiliation Bye-laws,
2018 (the Bye-laws), which action they are bound to take.
2. Respondents 3 and 4, namely, the CBSE, has filed a statement
contending that disciplinary action initiated by the management against erring
teachers in a School affiliated to the CBSE cannot be called in question by
them in a proceeding under Article 226 of the Constitution of India, which
position has been answered by this Court in the decision in Sommy
Kunjappan v. Central Board of Secondary Education, 2019(1) KLT 864.
As per the Bye-laws, every teacher and staff, for redressal of their grievance
relating to service conditions, pay etc. is to approach the School Management
Committee (SMC) of the respective School. The CBSE is an affiliating Body
and is not an appellate authority for any disciplinary proceedings initiated
against the employees of the school, contend the respondents.
3. The learned Single Judge noticed the Division Bench decision in
Sommy Kunjappan (Supra). However, according to the learned Judge, the
question whether a writ against non-consideration of a representation submitted
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
by a teacher before a SMC would be maintainable and whether the CBSE can
be directed by this Court to enforce the provisions contained in the Bye-laws,
have not been considered in the judgment. The learned Single Judge was of the
view that the aforesaid questions need to be answered by a Division Bench.
Hence the Registry was directed to place the matter before the learned Chief
Justice for orders. Thus, the reference.
4. As far as W.P.(C)No.5925/2021 is concerned, similar connected
issues are involved.
5. Heard the learned counsel for either side; the learned Standing
Counsel for the CBSE and the learned Senior Government Pleader.
6. Before we venture to answer the reference and decide the writ
petitions, we briefly refer to the law on the point. The power of judicial review
by the High Courts emanate from Article 226 of the Constitution of India.
Article 226 confers a very wide power on the High Court to issue directions
and writs of the nature mentioned therein for the enforcement of any of the
rights conferred by Part III or for any other purpose. It is, therefore, clear that
persons other than those claiming fundamental rights can also approach the
court seeking a relief thereunder. The Article in terms does not describe the
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
classes of persons entitled to apply thereunder; but it is implicit in the exercise
of the extraordinary jurisdiction that the relief asked for must be one to enforce
a legal right. (Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC
1044 and Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161).
7. Therefore, existence of a legal right is the foundation of the
exercise of jurisdiction of the Court under Article 226. The legal right that can
be enforced under this Article is ordinarily the personal or individual right of
the petitioner himself, though in the case of writs like habeas corpus or quo
warranto, this rule may be relaxed (The State of Orissa v. Madan Gopal
Rungta, 1952 SCR 28 and Chiranjit Lal Chowdhuri v. Union of India, 1951
AIR 41: 1950 SCR 869).
8. As held by a Constitution Bench of the Apex Court in Rai
Shivendra Bahadur v. Governing Body of the Nalanda College, 1962 Supp
(2) SCR 144, in order that a mandamus may be issued to compel the
authorities to do something, it must be shown that a statute imposes a legal
duty on the authority and the aggrieved party has a legal right under the statute
or rule to enforce it. A mandamus is available against any public authority
including administrative and local bodies. It would lie against any person who
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
is under a duty imposed by a Statute or by common law to do a particular act.
To obtain a writ or order like mandamus, the applicant must satisfy that he has
a legal right to the performance of a legal duty by the party against whom
mandamus is sought and such right must subsist on the date of the petition. A
demand, however, may not be necessary when the same is manifest from the
facts; that is, when it is an empty formality, or when it is obvious that the
opposite party would not consider the demand.
9. In Mansukhlal Vithaldas Chauhan v. State of Gujarat, 1997
KHC 1065: AIR 1997 SC 3400, the Hon'ble Supreme Court held that it is
primarily the responsibility and duty of a statutory authority to take a decision
and it should be enabled to exercise its discretion independently. If the
authority does not exercise its mind independently, the decision taken by the
statutory authority can be quashed and a direction given to take an independent
decision.
10. A Seven - Judge Bench in Hari Vishnu Kamath v. Ahmad
Ishaque, 1955 KHC 345: AIR 1955 SC 233 has delineated the bounds of
certiorari. A writ of certiorari can be invoked where the subordinate tribunals
or bodies or officers act wholly without jurisdiction, or in excess of it, or in
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
violation of the principles of natural justice, or refuse to exercise a jurisdiction
vested in them, or when they issue orders conferring an error apparent on the
face of the record. A Constitutional Court, while exercising its extraordinary
jurisdiction of certiorari, acts as a supervisory body but not as an appellate one.
An erroneous adjudication may also be amenable to the command of certiorari,
but the resulting error must be one apparent on the face of the record, that is,
when the decision is clearly in ignorance of or in disregard for law. Pithily put,
a patent error which results in perversity or miscarriage of justice too, is
amenable to judicial review. (K.C.T. Steel Pvt. Ltd. v. State of Kerala, 2016
(4) KHC 336).
11. Having thus reminded ourselves of the law on the point, we revert
to the case on hand. In the Division Bench decision of this Court referred to in
the reference order, that is, Sommy Kunjappan (Supra), this Court was called
upon to consider the question whether disciplinary action initiated by the
management against the erring teachers in a school affiliated to the CBSE
could be called in question by them in a proceeding under Article 226. The
question was referred to the Division Bench in view of the conflict between
various decisions of this Court with specific reference to the schools affiliated
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
to the CBSE. It noticed that a school affiliated to CBSE does not require
recognition from the State Government under the Kerala Education Act, 1958
(the KEA). But such a school requires recognition from the State Government
under Section 18 of the Right of Children to Free and Compulsory Education
Act, 2009 (the RTE Act) read with Rule 14 of the Right of Children to Free and
Compulsory Education Rules, 2010 (the RTE Rules) on application made. The
Bench held that a school affiliated to the CBSE imparting elementary
education under the RTE Act is an 'authority' amenable to the writ jurisdiction
of this Court. After scanning through Sections 21, 24 and 38 in the RTE Act
and Rule 19 of the RTE Rules, it was noticed that service matters, orders of
suspension from service and all penalties under disciplinary proceedings
initiated by the School Management have been specifically excluded from its
purview. Hence it held that there is no statutory provision either in the RTE Act
or in the RTE Rules relating to disciplinary action, the infraction of which
alone would clothe the writ court with jurisdiction.
11.1. Relating to the Bye-laws of the CBSE, it held that the same is in
the realm of contract between the school and the CBSE to which it is affiliated
and does not derive any statutory flavour at all. The absence of any provisions
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
in the RTE Act as well as the RTE Rules relating to service matters indicate
that disciplinary proceedings are out of bounds of the writ court. However, that
would 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 Bench held that writ jurisdiction could only be
invoked for proved infraction of the provisions in the RTE Act and RTE Rules
for reliefs like withdrawal of recognition to the school by the CBSE.
11.2. Relying on Satimbla Sharma v. St. Paul's Senior Secondary
School, (2011) 13 SCC 760 : 2011 (3) KLT 674 (SC), it held that a school
affiliated to the CBSE which is unaided is not a State within Article 12 of the
Constitution of India. Nevertheless, the school discharges a public duty of
imparting education, which is a fundamental right of the citizens
(K.Krishnamacharyulu v. Sri.Venkateswara Hindu College of
Engineering, (1997) 3 SCC 571). A school affiliated to C.B.S.E. is therefore
an 'authority' amenable to the jurisdiction under Article 226 [Binny Ltd. v.
Sadasivan, 2005 KHC 1303 : 2005 (6) SCC 657 : 2005 (4) KLT 315 (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
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
enforce a contract of personal service. A contract of personal service includes
all matters relating to the service of the employee, namely, confirmation,
suspension, transfer, termination etc. (Apollo Tyres Ltd. v. C.P.Sebastian,
(2009)14 SCC 360). Relying on K.K.Saksena v. International Commission
on Irrigation & Drainage, (2015) 4 SCC 670, it held that if a person or
authority is 'State' within the meaning of Article 12, admittedly a writ petition
under Article 226 would lie against such a person or body. However, even in
such cases, writ would not lie to enforce private law rights. The reason being,
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.
11.3. It is settled law that contract of personal service cannot be
enforced. Finding so, it has been held that a teacher of a school affiliated to
CBSE is neither a public servant working under the Union of India or State nor
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
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 . The disciplinary actions like the
order of suspension, the order of termination from service are beyond judicial
review. It was further held that the only grievance subsisting if any in the
domain of public law with reference to the provisions of the RTE Act and RTE
Rules can if at all be agitated in proceedings of this nature.
12. The judgment in Sommy Kunjappan (Supra) was delivered on
28/02/2019. Thereafter, the Hon'ble Supreme Court in the judgment in Jigya
Yadav v. C.B.S.E., 2021(3) KLT 711 (SC) delivered on 03/06/2021, held that
the CBSE Bye-laws do have the force of law. The Apex Court was dealing
with a batch of cases wherein questions relating to correction/change in
name/surname/date of birth of candidates or their parents in the certificates
issued by the CBSE were raised. The CBSE Examination Bye-laws restricted,
both qualitatively and quantitatively, the corrections/changes that could be
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
carried out in the certificates issued by the Board. Various students with need-
based requests approached different High Courts resulting in inconsistent
outcomes leading up to the batch of appeals before the Apex Court. Apart from
the fact that the judgments produced conflicting outcomes, the petitions raised
questions on the constitutional validity of the CBSE examination Bye-laws as
amended from time to time and its interpretation thereof. One of the points
that emerged for consideration was whether the CBSE examination Bye-laws
have the force of law. The argument that Bye-laws of the Board are contractual
elements as CBSE is a registered body unbacked by a Statute was rejected for
four reasons - first, CBSE is not a private corporate body. It is a juristic person
and a "State" within the meaning of Article 12, which in itself warrants its
amenability to the courts including constitutional writ courts; second, the
functions performed by the CBSE Board are public functions and not private
functions; third, the test of "force of law" takes within its sweep the nature of
rule, its authoritative impact on the subjects, nature of function performed by
the rule making body, the origin of the body, the binding value of the rules,
existence of any competing set of rules and fourth, absence of statute does not
automatically render the rules to be contractual terms. The CBSE examination
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
Bye-Laws couched in the form of a code provide for all essential aspects
relating to formal education of the student including admission, examination,
migration, transfer, curriculum, fee for various services, issuance of verifying
certificates, modifications in certificates etc. The said Bye-laws, therefore,
bind the parties and are duly enforceable in a court of law, even by way of writ
remedies. The Bye-laws of the Board was hence found to have the force of law
and to be regarded as such for all legal purposes as it would serve no
meaningful purpose to hold the authoritative set of rules originating from an
instrumentality of the State as mere contractual terms despite there being
overwhelming public interest in their just application.
13. In the light of the dictum in Jigya Yadav (Supra), the CBSE
Affiliation Bye-laws, 2018 referred to and relied on by the petitioners in both
the writ petitions, have statutory force and hence the terms/stipulations
contained therein, if violated or not complied with by person(s) or authorities
bound by it, can be enforced by an aggrieved person by initiating proceedings
under Article 226, provided the conditions referred to herein above are
satisfied. However, the Service Rules or other Rules made by a school
affiliated to the CBSE in compliance with the stipulations contained in the
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
Byelaws cannot be enforced by resorting to the writ jurisdiction under Article
226, as it is purely contractual and as there is no public law element involved.
The writ jurisdiction cannot be invoked to enforce a contract of personal
service, which contract includes matters relating to service of an employee, that
is, confirmation, pay, suspension, termination etc. However, writ jurisdiction
can certainly be invoked when there is a complaint of violation of the
provisions of the RTE Act or the RTE Rules.
14. Therefore, we find that the CBSE can be directed to enforce the
provisions of the Bye-laws which have statutory force. The second question
raised in the reference order is answered accordingly.
15. W.P. (C)No.8036/2020 - The first respondent School, admittedly
affiliated to the CBSE comes within the definition of 'School' as contemplated
under Section 2(n) of the RTE Act. The unaided school affiliated to the CBSE
is not a State within Article 12 of the Constitution of India. Nevertheless, as
the school is discharging a public duty of imparting education, a fundamental
right of the citizens, is therefore an 'authority' amenable to the writ jurisdiction
under Article 226 of the Constitution of India. [Satimbla Sharma,
Krishnamacharyulu and Binny Ltd. (Supra)].
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
16. The reliefs sought in this writ petition are-
"(i) call for the records leading to Exts.P1 to P6 and quash Ext.P3 suspension
order.
(ii) Issue a writ of mandamus or other appropriate writ, order or direction
directing the 1st and 2nd respondents to withdraw the suspension order and re-
instate the petitioner in service with all consequential benefits.
(iii) Issue a writ of mandamus or other appropriate writ, order or direction
directing the respondents to finalize Ext.P4, P5 and P6 in a time bound manner by
constituting an enquiry commission
(iv) issue a writ of mandamus or other appropriate writ, order or direction
directing the 3rd and 4th respondents to act against the school in accordance with
CBSE affiliation Byelaws.
(v) pass such other order or direction as this Honourable Court may deem fit and
proper in the interest of justice."
17. It was submitted by the learned Senior Counsel appearing for the
petitioner that reliefs (i) and (ii) are not pressed. Therefore, the first question
raised in the reference order as to whether a writ petition with a prayer to
consider a request made by a teacher before a School Management Committee
(SMC), which according to the CBSE is statutory in nature, is maintainable,
does not arise for consideration in this petition and so we are not going into the
same. We are only considering relief no.(iii) and (iv) sought in the writ petition.
18. According to the petitioner, conditions stipulated in the CBSE
affiliation Bye-laws have been violated by the first respondent School and so
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the CBSE is bound to take action against them. Various provisions in the Bye-
laws are - Chapter 2 of the Bye-laws deal with the norms for affiliation. Clause
2.3.3 dealing with the SMC says that subject to the relevant provision in the
Education Act/Rules of the appropriate government, every school should have
a scheme of management. It should also have a SMC as stipulated under RTE
Act and as per provisions contained in the Bye-laws. Clause 2.4 says that post
affiliation, a school is to fulfill the requirements specified in clauses 2.4.1 to
2.4.14 before starting classes on the CBSE pattern as per the conditions laid
down in the affiliation grant letter and the session mentioned therein. Clause
2.4.1 says that the staff and service conditions shall be as per the provisions
contained in Chapter 5. Clause 5.3 of Chapter 5 says that the school shall
define the service rules of teaching and non-teaching staff on the lines of the
service rules of the employees of the appropriate Government. The service
rules are to be approved by the SMC and the Trust/Society/Company running
the school shall invariably have specific and well documented provisions in
respect of the matters referred to in 5.3.1 till 5.3.23 which inter alia includes
provisions for representations to the school management (Clause 5.3.12) ;
Disciplinary procedure: Suspension and Reinstatement (Clause 5.3.20) ;
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Constitution of Disciplinary Committee(Clause5.3.21); Penalties (Minor and
Major), Powers of imposing Penalties and Procedure of imposing penalties;
Payment of Pay and Allowances on Reinstatement (Clause 5.3.23) etc.
18.1. Clause 8.1 in Chapter 8 dealing with the SMC, says that all the
schools affiliated to the Board shall have a SMC as stipulated in RTE Act, any
other enactment or regulation framed by the State/Appropriate Government.
The composition of the SMC is provided for in clause 8.2. Clause 8.4 dealing
with the powers and functions of the SMC says that, subject to the overall
control of the Society/Trust/Company, the duties, powers and responsibilities
of the SMC shall include but is not limited to the matters contained in clauses
8.4.1 to 8.4.15. Clause 8.4.14 says that the SMC shall look into the grievances
of the teachers and staff in connection with their service conditions, pay etc.
and dispose such grievances in accordance with the applicable rules. Chapter
12 dealing with penalties say that, if a school is found violating the provisions
of the affiliation Bye-laws of the Board or does not abide by the directions of
the Board, the Board shall have the powers to impose the penalties provided in
clause 12.1.1 to 12.1.10, which include written warning; imposition of fine;
suspension or withdrawal of affiliation etc. Clause 12.2 says that the Board
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may impose all or any of the penalties mentioned in clause 12.1 on any school
in the cases referred to in clauses 12.2.1 to 12.2.9, which inter alia include
established violations of the conditions laid down in the affiliation Bye-laws.
Chapter 13 provides for the manner in which the penalties have to be imposed.
19. Reference was also made to Sections 18, 18(3), 19, 21, 24(3) of
the RTE Act and Rule 16 of the RTE Rules. Section 18 says that no school
shall be established without obtaining certificate of recognition from the
authority prescribed and that recognition will not be granted unless it fulfills
the norms and standards specified in Section 19. Sub-section (3) says that on
the contravention of the conditions of recognition, the prescribed authority
shall, by an order in writing, withdraw recognition. Section 19 dealing with
norms and standards for school says that, no school shall be established, or
recognised, under section 18, unless it fulfils the norms and standards specified
in the Schedule of the Act. Section 21(1) says that a school, other than a school
specified in sub-clause (iv) of Clause (n) of Section 2, shall constitute a SMC
consisting of the elected representatives of the local authority, parents or
guardians of children admitted in such school and teachers. Section 24 deals
with duties of teachers and redressal of grievances. Sub-section (3) says that
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
the grievances, if any, of the teacher shall be redressed in such manner as may
be prescribed. Rule 16 dealing with withdrawal of recognition to schools says
that where the District Education Officer on his own motion, or on any
representation received from any person, has reason to believe, to be recorded
in writing, that a school recognised under rule 15, has violated one or more of
the conditions for grant of recognition or has failed to fulfill the norms and
standards specified in the Schedule, the District Education Officer may
recommend for withdrawal of recognition after following the procedure
contemplated therein.
20. According to the petitioner, she being a teacher in the elementary
section of the school, the provisions of the RTE Act and RTE Rules would
apply. Exts. P4, P5 and P6 representations given by her against Ext. P3 illegal
order of suspension to the second respondent Principal; to the Chairman of the
SMC and the third respondent CBSE respectively have not been acted upon
and no action has been taken. The aforesaid provisions in the RTE Act, RTE
Rules and the Bye-laws have not been complied with or in other words have
been violated by the first respondent School. Therefore, she contends that the
CBSE is bound to act according to the provisions contained in Chapter 12 of
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
the Bye-laws by imposing all or any of the penalties as contemplated therein.
Once a violation of the provisions of the Bye-laws by an affiliated School is
brought to the notice of the CBSE, the CBSE is bound to take appropriate
action on the same. There is a public duty cast on the CBSE which gives a
corresponding right to the petitioner, which right according to the petitioner,
can be enforced under Article 226 of the Constitution of India.
21. Admittedly, Ext.P3 suspension order has been issued by the
Principal, the 2nd respondent. The Bye-laws do not empower the Principal to do
so. As per Clause 8.4.14 in Chapter 8 of the Bye-laws, it is the SMC that has to
look into the grievances of the teachers and staff in connection with their
service conditions, pay etc. and dispose of such grievances in accordance with
the applicable rules. It is not clear whether school has complied with the
Clauses in Chapter 5 as per which it is bound to define the service rules of
teaching and non-teaching staff on the lines of the service rules of the
employees of the appropriate Government. The service rules which are to be
approved by the SMC and the Trust/Society/Company running the school shall
invariably have specific and well documented provisions in respect of the
matters relating to provisions for representations to the school management;
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
disciplinary procedure; constitution of disciplinary committee; penalties (minor
and major), powers of imposing penalties and procedure of imposing penalties;
payment of pay and allowances on reinstatement etc. Therefore, there appears
to be non-compliance of the mandatory provisions of the Affiliation Bye-laws.
When such violations are brought to the notice of the CBSE, it has to act in
accordance with the provisions contained in Chapters 12 and 13. The issuance
of Ext.P3 contrary to the terms of the Bye-laws and the alleged inaction on the
part of the SMC has been brought to the notice of the CBSE by Ext.P6
representation. The CBSE has no case that they have acted in accordance with
the provisions in Chapter 12 and 13 of the Bye-laws. They only contend that
the petitioner has to approach the SMC of the school concerned and that they
are not the appellate authority in any disciplinary matters initiated by the
school. The stand of the CBSE is not correct. They may not be the appellate
authority in disciplinary matters initiated by the school against its employees.
But they are certainly bound to act, in case, any contravention or violation of
the mandatory provisions of their Bye-laws by any school affiliated to them is
brought to their notice. As they have failed to act in accordance with the
statutory provisions of the Bye-laws, the petitioner is entitled to get relief to
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
that limited extent.
W.P.(C)No.5925 of 2021
22. This writ petition has been filed to direct respondents 1 to 4 to
instruct the 5th respondent to act in accordance with Ext.P2 Rules and Ext.P3
Bye laws and also to declare that the petitioner is entitled to get the scale of
pay of a Sweeper working in a Government School and all other allowances
and benefits available to the Government School employees.
23. The petitioner alleges that she joined the service of the 5th
respondent school as a sweeper on 02/05/1995. She attended duty till she
suffered a stroke on 20/01/2006. The school follows the service rules of the
Kerala Education Department in addition to Ext.P2 Service Rules of the
school. As per clause 6 of Ext.P2, dealing with salary and dearness allowance,
an employee is entitled to receive the salary and dearness allowance at the
same rates as paid by the Government to its employees. The CBSE bye laws
contain several provisions relating to salary and other benefits to be given to
the employees of the school. Pursuant to the petitioner suffering a stroke, she
applied for leave from 20/01/2016. Till date leave has not been granted. ESI
contribution payable by the employer/school has been discontinued with effect
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
from 31/01/2018. As a result, ESI benefits available to the petitioner has also
been blocked. The petitioner has not been paid salary as per Ext.P2 Service
Rules. Against the infraction of the service rules by the school, the petitioner
had complained to the CBSE, namely, respondents 2 to 4 as well as to the
Secretary of the School, namely, the 5 th respondent. Ext.P16 is the copy of the
representation given to the 5th respondent. However, no action has been taken
so far. The failure of respondents 1 to 5 to pay salary and other allowances as
provided in the Bye laws of the CBSE and Ext.P2 service rules is arbitrary,
mala fide, illegal, without jurisdiction and violative of Article 14 of the
Constitution. Hence the writ petition, seeking a direction to respondents 1 to 4
to instruct the 5th respondent to act in accordance with Ext.P2 Rules and the
Bye laws; declare that the petitioner is entitled to get the scale of pay and all
other allowances of a sweeper working in a Government school; a writ of
mandamus directing the 5th respondent to comply with Ext.P2 service rules and
the Bye-laws and grant the scale of pay of a sweeper working in the
Government School to the petitioner.
24. The Secretary of the 1st respondent school, namely the 5th
respondent has filed counter disputing the claim of the petitioner. In the
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
counter initially filed by the 5th respondent it is contended that the 5th
respondent is not liable to pay salary or any other benefits to the petitioner as
per the affiliation Bye-laws. In the additional counter affidavit filed, it is
contended that the writ petition is not maintainable. The petitioner abruptly
stopped work without even applying for leave. She continued to receive her
salary and ESI benefits till 30/08/2018. The 5th respondent school pays salary
to its staff/employees as per the norms prescribed by the State Government.
The salary payable to the non-teaching staff of an educational institution has
been laid down as per Ext.R-5(C) G.O. dated 12/09/2011. Subsequently, the
salary has been revised as per Ext.R-5(D) G.O. dated 11/02/2021. The 5th
respondent school has been following the directions contained in the aforesaid
G.Os. The petitioner has in fact received a higher pay than what has been
prescribed by the Government in the aforesaid G.Os. and the petitioner's claim
contrary to the same based on pay commission recommendations is baseless
and not applicable to the petitioner. The petitioner is also not entitled to the
benefit claimed by her in the light of the dictum in State of Kerala v. Mythri
Vidhya Bhavan English Medium School, I.L.R 2012 (4) Kerala 387 and
Satimbla Sharma (Supra), contends the fifth respondent.
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
25. The 5th respondent school, admittedly, an unaided school is
affiliated to the CBSE. Therefore, the 5 th respondent though not a State, is an
authority as contemplated in Article 12 of the Constitution and hence amenable
to writ jurisdiction. Chapter 14 of the Bye-laws deals with General rules.
Clause 14.1 of the Chapter says that every school is bound to follow the
affiliation Bye-laws of the Board mutatis mutandis. Therefore, the 5 th
respondent school is bound to comply with the various stipulations contained
in the Bye-laws. Chapter 2 of the Bye-laws deal with the norms for affiliation.
As noticed earlier, Clause 2.3.3 says that subject to the relevant provision in the
Education Act/Rules of the appropriate government, every school should have
a scheme of management. It should also have a SMC as stipulated under RTE
Act and as per the provisions contained in the Bye-laws. Clause 2.4.1 says that
Staff and Service conditions shall be as per the provisions contained in
Chapter 5 of the Bye-laws. Chapter 5 of the bye-laws dealing with Staff refers
to the qualifications, recruitment and service rules in respect of the Principal,
Vice Principal, Teachers and other staff. The guiding principles in respect of
all activities related to the recruitment of the staff is dealt with in clause 5.2.
Clause 5.2.2 says that teaching and non-teaching staff should be appointed on
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
pay scales and allowances prescribed by the appropriate Government. Clause
5.3. says that the school shall define the service rules of teaching and non-
teaching staff on the lines of the service rules of the employees of the
appropriate Government. The service rules shall be approved by the SMC and
the Trust/Society/Company running the school and invariably have a specific
and well documented provisions in respect of the matters contained in clauses
5.3.1 to 5.3.23.
25.1. Chapter 8 of the Bye-laws dealing with SMC, says that subject to
the relevant provision in the Education Act of the State/UT concerned, every
affiliated school should have a school management as per the clauses referred
to in the Chapter. Clause 8.4.14 says that the SMC shall look into grievances
of the teachers and staff in connection with their service conditions and pay,
etc. and dispose of such grievances in accordance with applicable rules.
Clause 9.3 in Chapter 9 deals with Manager/Correspondent of the School.
Clause 9.3.1 inter alia says that the Manager/Correspondent, an important and
necessary link between the Trust/Society and the School, shall exercise general
supervision over the school, subject to the control of the SMC and that he shall
sign on the appointment letters, letters for disciplinary action against the staff
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
and termination, and suspension letters, etc. on behalf of the Management
Committee.
25.2. Chapters 12 and 13 of the guidelines dealing with penalties and
the manner of imposing the penalties have already been adverted to. These
clauses show that the Board has the power to impose the penalties referred to
in the clauses 12.1.1 to 12.1.10 in the event of a school violating or failing to
abide by the directions of the Board.
25.3. Further, Section 2(n) of the RTE Act defines school to be any
recognised school imparting elementary education and includes an unaided
school not receiving any king of aid or grants to meet its expenses from the
appropriate Government or the local authority. We have already referred to
Sections 18, 19, 21 and Rule 16 which are also relevant here. Sub-section (3)
to Section 23, which Section deals with qualifications for appointment and
terms and conditions of service of teachers, says that the salary and allowance
payable to, and the terms and conditions of, a teacher shall be such as may be
prescribed. Section 38 says that the appropriate Government may, by
notification, make rules, for carrying out the provision of this Act. Clauses (a)
to (r) of Sub-section (1) deals with the matters on which the appropriate
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
Government has the power to make rules.
26. Therefore, it is clear from the aforesaid Clauses in the Bye-laws
that once affiliation has been obtained, the school is bound to comply with the
provisions contained in the Bye-laws. A writ of mandamus can be issued
against a private body which is not 'State' within the meaning of Art.12 of the
Constitution, if only there is a public law element. This Court cannot exercise
judicial review of the action challenged by a party under Art.226 to enforce
private contracts entered into between the parties. When contractual power is
being used for public purpose, it is certainly amenable to judicial review. In
Binny Ltd (Supra), while reversing the judgment of the High Court, the
Supreme Court found that the decision of an employer to terminate the service
of their employees cannot not be said to have any element of public policy
since their cases are governed by the contract of employment entered into
between employees and the employer. It was further observed that it is not
appropriate to construe the contract as opposed to the principles of public
policy and thus void and illegal under S.23 of the Contract act. It was
concluded that in contractual matters even in respect of public body, principles
of judicial review have got limited application, relying on the decisions in
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
State of Uttar Pradesh v. Bridge & Roof Co. (India) Ltd., 1996 (6) SCC 22
and Kerala State Electricity Board v. Kurien E. Kalathil, 2000 (6) SCC
293.
27. As held in K.K.Saksena (Supra), if a person or authority is a
'State' within the meaning of Art.12 of the Constitution, admittedly a writ
petition under Art.226 would lie against such a person or body. However, even
in such cases writ would not lie to enforce private law rights. Reason is
obvious because 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 writ petition would be maintainable against
an authority, which is 'State' under Art.12 of the Constitution, before issuing
any writ, particularly writ of mandamus, this 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.
28. It is undoubtedly true that the school in question here is imparting
education to small children. In that perspective it could be said that the
management is discharging a public duty; but still there is no public element in
the dispute that has now cropped up vis a vis the management and the teacher.
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
If the petitioner seeks to enforce any clause in Ext.P2 Service Rules, she has to
necessarily approach the competent Civil Court for the same. As noticed
earlier, the school does not come within the purview of the KEA and the Kerala
Education Rules, 1959 (the KER). The institution does not receive any grant
or aid from the Government. It cannot also be said that the Government or the
Department of Education has got any administrative or supervisory control
over the school except relating to matters contained in clause 2.3.4 and 2.3.5 in
Chapter 2 of the Bye-laws referred to earlier. Therefore, a writ of mandamus
for enforcing Ext.P2 Service Rules and connected reliefs cannot be granted.
29. It is true that the 5 th respondent school though not coming under
KEA or the KER, is certainly bound by the provisions contained in the Bye-
laws, the RTE Act and the RTE Rules. As the Bye-laws has the force of law,
relief to the extent of directing the school to enforce/comply with the
provisions of the Bye-laws alone can be granted.
30. Admittedly, the Government has not prescribed Rules relating to
salary and conditions of service of the teachers or staff of the aided schools as
provided under the Bye-laws. The 5th respondent contends that they are paying
salary as per Ext.R-5(C) and R-5(D) Government orders, which have been
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
issued by the Government under the relevant provisions of the Minimum
Wages Act, 1948. Ext.R-5(C) Government order says that in exercise of the
powers conferred by Clause (a) of Sub- section (1) of Section 5 of the
Minimum Wages Act, 1948 read with Sub-section (2) of Section 5 thereof, the
Government of Kerala has prescribed the rates of wages to the employees
employed in private educational institutions (non-teaching) in the State of
Kerala specified in the schedule annexed to the same and says that from the
date of publication of the notification, the rates of pay shall come into force.
Ext.R-5(D) says that the State Government in exercise of the powers conferred
by Clause (c) of Sub-section (1) of Section 3 of the Minimum Wages Act 1948
read with Sub-section (2) of Section 5 thereof is revising the minimum rates of
wages payable to the employees employed in the private educational
institutions (non-teaching) industry sector in the State of Kerala as specified in
the Schedule annexed thereto. Apparently these two Government orders have
not been issued pursuant to the stipulations contained in Clause 5.2.2 in
Chapter 5 of the Bye-laws. The said Government orders were never intended
to be the pay scales and allowances as per the stipulations contained in the
Bye-laws which came into effect in the year 2018 only. The learned Senior
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
Government Pleader also admitted that the Government has not prescribed any
Rules as provided in the Bye-laws. If the Government had prescribed Rules
and if they were not being complied with by the School, then certainly it would
have been a violation of the provisions of the Bye-laws. Had that been the
case, the CBSE could have been issued with necessary directions to take
action. That admittedly is not the case here. Further, Ext.P2 Service Rules of
the school cannot be enforced as it has no statutory flavour and as it is only a
contract between the parties which cannot be enforced through a proceedings
under Article 226. Ext.P16 representation given to the school is based on the
Rules contained in Ext.P2, which cannot be directed to be enforced through the
present proceedings. Though the writ is maintainable, the reliefs prayed for
cannot be granted for the aforesaid reasons.
In the result -
a) Question no.1 in the Reference Order, whether a writ against non-
consideration of a representation submitted by a teacher before a School
Management Committee would be maintainable, is not answered as it does not
arise for consideration in this case.
b) Question no.2 in the Reference Order, whether the CBSE can be
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
directed by this Court to enforce the provisions contained in the Bye-laws, is
answered in the affirmative.
c) W.P.(C)No.8036/2020 is disposed of directing the third and the fourth
respondents to dispose of Ext.P6 representation of the petitioner, after giving
notice and affording an opportunity of hearing to all concerned, within a period
of two months from the date of receipt of a copy of this judgment.
d) W.P.(C)No.5925/2021 is dismissed.
Interlocutory applications, if any, pending shall stand closed.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
C.S.SUDHA
JUDGE
ami/jms
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
APPENDIX OF WP(C) 8036/2020
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE COMPLAINT GIVEN BY THE
PETITIONER'S HUSBAND BEFORE THE 1ST
RESPONDENT DATED 15.11.2019.
EXHIBIT P2 TRUE COPY OF THE COMPLAINT GIVEN BY THE
PETITIONER'S HUSBAND BEFORE THE 2ND
RESPONDENT DATED 15.11.2019.
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION/SUSPENSION
ORDER DATED 7.1.2020 ISSUED TO THE
PETITIONER.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER DATED 16.1.2020
ADDRESSED TO THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF REPRESENTATION SUBMITTED BY
THE PETITIONER BEFORE THE SCHOOL
MANAGEMENT COMMITTEE DATED 16.1.2020.
EXHIBIT P6 TRUE COPY OF THE COMPLAINT DATED 3.2.2020
SUBMITTED BY THE PETITIONER TO THE 3RD
RESPONDENT.
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
APPENDIX OF WP(C) 5925/2021
PETITIONER'S EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE SERVICE PARTICULARS OF
THE PETITIONER ATTESTED BY THE 5TH
RESPONDENT SCHOOL, INSURANCE NO.
4805433587.
EXHIBIT P2 A TRUE COPY OF THE EXTRACT OF THE SERVICE
RULES OF THE 5TH RESPONDENT SCHOOL.
EXHIBIT P3 A TRUE COPY OF THE RELEVANT EXTRACT OF
THE BYE-LAW OF THE CENTRAL BOARD OF
SECONDARY EDUCATION.
EXHIBIT P4 A TRUE COPY OF THE EXTRACT OF THE
ATTENDANCE REGISTER MARKED BY THE
PETITIONER IN THE MORNING AND EVENING FOR
THE MONTHS OF OCTOBER AND NOVEMBER, 2013.
EXHIBIT P5 A TRUE COPY OF THE REPLY DATED 28/04/2020
ISSUED BY THE SENIOR SUPERINTENDENT,
OFFICE OF THE DIRECTOR OF GENERAL
EDUCATION UNDER RIGHT TO INFORMATION ACT
TO THE PETITIONER'S HUSBAND.
EXHIBIT P6 A TRUE COPY OF THE PETITION DATED
03/06/2020 SUBMITTED TO THE OFFICE OF
REGIONAL DIRECTOR, CBSE,
THIRUVANANTHAPURAM.
EXHIBIT P7 A TRUE COPY OF THE APPLICATION DATED
22/10/2018 SUBMITTED BY THE PETITIONER
UNDER THE RIGHT TO INFORMATION ACT BEFORE
THE DIRECTOR, CBSE, THIRUVANANTHAPURAM.
EXHIBIT P8 A TRUE COPY OF THE ORDER IN APPEAL NO.
CIC/CBSE/A/2017/309956/MP DATED
04/10/2017 OF THE CENTRAL INFORMATION
COMMISSION, NEW DELHI.
Exhibit P9 A TRUE COPY OF THE LETTER DATED 2/5/1997
OF CBSE
Exhibit P10 A TRUE COPY OF THE LETTER OF 5TH
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
RESPONDENT SCHOOL WITH ENDORSEMENT DATED
NIL
Exhibit P11 A TRUE COPY OF THE RECEIPT ISSUED BY THE
BANK ACKNOWLEDGING THE RECEIPT OF THE
AMOUNT IN THE NAME OF THE MANAGER OF THE
SCHOOL DTED 3/2/2016
RESPONDENTS' EXTS.
Exhibit R5(a) TRUE COPY OF THE RELEVANT PAGE OF THE
ATTENDANCE REGISTER
Exhibit R5(b) TRUE COPIES OF THE CERTIFICATES ISSUED BY
THE ESI MEDICAL OFFICER FOR THE PERIOD
UPTO AUGUST 2018
Exhibit R5(C) TRUE COPY OF THE G.O.(P)NO.155/2011/LBR
DATED 12.9.2011
Exhibit R5(D) TRUE COPY OF THE G.O.(P)NO.22/2021/LBR
DATED 11/2/2021
