Andhra HC (Pre-Telangana)
Maricherla Chitti Babu vs Bharatiya Vidya Bhavan, Rep. By Its Hon' ... on 10 September, 1991
Equivalent citations: 1991(3)ALT385
ORDER D.J. Jagannadha Raju, J.
1. This writ petition is filed by an employee of Bharatiya Vidya Bhavan whose services were terminated for issuing a writ of certiorari or any other appropriate direction on the ground that the proceedings No. BVB/T-5/91, dated 30-4-1991, issued by the first respondent is illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India.
2. The petitioner claims that he has been an employee of Sri Ramakrishna Vidyalaya, Sainikpuri, from 3-7-1978. The school was run by Rama Krishna Seva Samithi, a registered society. The school was affiliated to the Central Board of Secondary Education. In the month of June, 1989, Sri Ramakrishna Seva Samithi was merged with Bharatiya Vidya Bhavan and since then the school is known as Bharatiya Vidya Bhavan School, Sainikpuri. As the school is affiliated to the Central Board of Secondary Education, the functions performed by the school are of a public nature and State nature. It comes within the meaning of' State' as per Article 12 of the Constitution of India. He is a permanent teacher whose services were confirmed. On 30-4-1991, proceedings No. BVB/T-5/91, was issued informing the petitioner that his services are no longer required and he was paid an amount of Rs. 27, 482-00 representing three months' salary in lieu of notice and various other items. The said proceedings are illegal and violative of Articles 14 and 16 of the Constitution of India. The termination of services is mala fide and there is no reason for terminating his services. Hence, the proceedings dated 30-4-1991 may be quashed by issuing a writ of certiorari or any other appropriate writ.
3. The Writ petition is resisted on the following grounds: The school is run by a private organisation and it does not receive any aid or grant either from the State or the Central Government. It does not satisfy the requirements of a State or authority or instrumentality of the State as contemplated under Article 12 of the Constitution, and, therefore, no writ petition would lie against the respondents. It is not a creature of a statute and it does not perform any public functions. The contract of employment is a pure private contract not controlled by any statute. This writ petition is not maintainable. The various allegations in the petition arc false. The so called service rules framed by the C.B.S.E. do not govern the school. The Board only prescribed the minimum qualifications for the teachers to be appointed to the school. The respondent issued the proceedings dated 30-4-1991 as the petitioner's services were no longer required. He was paid a total amount of Rs. 27,482/- towards notice pay, compensation, gratuity and salary for the month of April, 1991. He was paid Rs. 4,611/- towards the refund of the Security Deposit. The action of the respondent is perfectly-legal and valid. The proceedings do not violate Articles 14 and 16 of the Constitution of India. The Writ Petition does not lie. This Hon'ble Court in W.P.No. 9275 of 1987 and W.P.No. 18380 of 1987 held that the respondent-school is not a State or an instrumentality of State and that a writ petition under Article 226 of the Constitution of India is not maintainable. Hence the writ petition may be dismissed.
4. Sri Krishnamurthy, the learned counsel for the petitioner, contends that Justice Jeevan Reddy in his decision in Wing Commander, V.R. Raju v. The Management Committee, Bharatiya Vidya Bhavan Public School, 1989 (1) A.P.L.J. 524 did not deal with various aspects which are now raised in this writ petition. That writ petition is only with regard to the question whether Bharatiya Vidya Bhavan School comes within the ambit of State or instrumentality of State as contemplated by Article 12 of the Constitution. He placed strong reliance upon Shri Anadi Mukta Sadguru S.M.V.S.J.M.S. Trust v. V.R. Rudani, which held that a writ of mandamus can be issued to any person or authority even though it does not satisfy the ingredients of a State. He contends that, the school has necessarily to satisfy the requirements of the A.P. Education Act and under Section 79 of the A.P. Education Act, a teacher in a private school can be removed only after notice and after proper enquiry. Though the school is affiliated to the C.B.S.E. the school is governed by local State Act. In P.H. Venkataiah v. A.P. Co-op. Central Agricultural Dev. Bank Ltd., 1991 (II) A.L.T. 536 Sri M. Jagannadha Rao, discussion the question in a larger aspect, held that a writ can be issued to a co-operative society and it need not be a State or instrumentality of the State. Mr. Krishnamurthy contends that receipt or non-receipt of grants from the State or Central Government is totally irrelevant for considering the issue in this writ petition.
5. Sri K. Satyanarayana Rao, appearing for the respondents, contends that this school is affiliated to the C.B.S.E. It does not receive grants either from the State Government or from the Central Government. It is not govered by A.P. Education Act (Act 1 of 1982), The judgment of Justice Jeevan Reddy in the earlier writ petition is a complete answer for all the contentions raised in this Writ petition. The decision in P.H. Venkataiah v. A.P. Co-op. Central Agricultural Dev. Bank Ltd. (3supra) has no application to the facts of the case, as a co-operative institution performs public functions and it is funded and controlled by Government. In their present case, no statutory rule is violated in terminating the services of the petitioner. He also relies upon judgment in W.P. Nos. 9275 and 18380 of 1987 dated 15-6-1990 rendered buy Justice Neeladri Rao, J. stating that a society-school is not a State. Hence no writ would lie. He also relies upon A.P. John Paulraj v. Central Board of Secondary Education, 1991 Lab. I.C.378 and claims that it is crystal clear that no writ petition would lie against the respondents.
6. The points for consideration are:
(1) Whether Bharatiya Vidya Bhavan School, in which the petitioner was earlier working as a teacher, is an institution governed by the A.P. Education Act (Act 1 of 1982) ?
(2) Whether a writ petition would lie against the order terminating the services of the petitioner?
7. Points: Mr. Krishnamurthy very vehemently contended that the earlier decision of Justice Jeevan Reddy in Wing Commander V.R. Raju v. Bharatiya Vidya Bhavan (1 supra) is not applicable to the facts of this case and in that decision. His Lordship considered only the limited question whether the Bharatiya Vidya Bhavan Public School comes within the purview of Article 12 of the Constitution or not. It did not consider various other aspects as to whether the educational institution which is a private educational institution is governed by the A.P.Education Act (Act 1 of 1982) and the rules governing the conditions of service of the employees etc. He contends that that decision is more based upon the particular contract entered into between the school and the petitioner in that case. He places strong reliance on Shri Anadi Mukta Sadguru S.M.V.SJ.M.S. Trust v. V.R. Rudani (2 supra) and contends that a writ of mandamus would lie even to a person or authority which is not necessarily an instrumentality of a State on a statutory authority. He contends that the writ of mandamus is of wide amplitude and relief can be granted in a writ petition in the present case. He cited before me certain of the provisions of the A.P. Education Act (Act 1 of 1982) to indicate that a teacher in a private school can be removed only after notice and due enquiry. He also relies upon a provision in the C.B.S.E. Rules which stipulates that the Managing Committee will be responsible to ensure that the norms given by the Acts of the States and by the C.B.S.E. regarding the terms and conditions of service and other rules governing the affiliated schools are adhered to. Relying upon this particular passage in the Rules, he claims that the Bharatiya Vidya Bhavan School, Sainikpuri, is a private school as contemplated by the Act 1 of 1982 and hence the termination of the services of a teacher without following the procedure laid down under Section 79 of the Act is illegal.
8. A careful reading of the A.P. Education Act clearly shows that the argument is based upon a wrong understanding of the provisions of the said Act. Under the scheme of the Act, educational institutions are divided into different categories. Private institution is defined in Section 2(35) of the Act as " an institution imparting education or training, established and administered or maintained by any body of persons, and recognised as educational institution by the Government, and includes a college, a special institution and a minority educational institution........". Chanter VI deals with establishment of educational institutions, their administration and control. Section 21 stipulates for granting or withdrawal of recognition of educational institutions. A private institution which is not recognised under Section 21 of the Act does not come within the purview of this Act. Chapter VI-A which was introduced in the year 1987 provides for registered schools. A registered school usually means a school recognised under Section 21 of the Act but not receiving aid from the Government. Section 33-A of the Act clearly lays down that no registered school shall be entitled to receive grant-in-aid or any other financial assistance from the Government for its management. The existing recognised schools which arc receiving the grant-in-aid shall continue to receive such aid only until they are registered under Section 33-B. Various other provisions are introduced in this chapter for control and administration of registered schools. Chapter VIII deals with grant-in-aid. Chapter XIV deals with payment of salaries and allowances to and disciplinary action against employees of private institutions. Section 79 comes in Chapter XIV. This section lays down that no teacher or member of the non-teaching staff employed in any private institution shall be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him given a reasonable opportunity of being heard in respect of those charges. The proviso contemplates that except in the case of a minority educational institution, no order of dismissal or removal shall be passed without the prior approval of such authority or Officer as may be prescribed for different classes of private institutions. The question we have to consider is whether Section 79 of the Act is applicable to Bharatiya Vidya Bhavan School, Sainikpuri.
9. The Bharatiya Vidya Bhavan School which is affiliated to the C.B.S.E. is neither recognised by the Slate nor does it get any aid from the State or the Central Government. It is simply an institution established by a private society and affiliated to C.B.S.E. The school does not satisfy the requirements of definition of private institution given in Section 2(35) of the Act. Hence Section 79 of the State Education Act has absolutely no application in this case.
10. In the decision reported in Wing Commander V.R. Raju v. Bharatiya Vidya Bhavan (1 supra), His Lordship Jeevan Reddy, J. dealt with all aspects and not merely a limited aspect as contended by the petitioner's advocate and His Lordship, dealing with the applicability of A.P. Education Act, pointed out in paragraphs 2,3 and 4 and acting upon the concession that the respondent-school has not been recognised by the Andhra Pradesh Government or the authorities under the A.P. Education Act, held that Section 83 of the Act has no application. His Lordship dealt with various provisions of the A.P.Education Act and observed in paragraph 5 that since the respondent-school is not recognised by the A.P. Government or any other competent authority under the Act, the A.P. Education Act has no application. Then, after referring to the first contention that the Clause (5) of the letter of appointment giving a right to the management to terminate petitioner's services with a prior notice of three months is violative of Articles 14 and 16 of the Constitution, the court pointed out that such stipulations in the Regulations of statutory corporations have been struck down by the Supreme Court and after referring to several decisions pointed out in paragraph 7 that" in all these cases the Regulation was a statutory one and the employer was a statutory Corporations or an agency or instrumentality of the State". Then His Lordship observed that "It is difficult to extend the said principle to a pure and simple contract entered into between an employer and an employee where the employer is neither a statutory Corporation nor an agency or an instrumentality of the State. Such a clause in a private contract of service would not be bad." In paragraph 11 of the Judgment, His Lordship indicated that it is admitted that no aid or grant is given to this School as such, either by the State Government or by the Central Government. Dealing with the element of deep and pervasive control of the Government over the school, His Lordship dealt with the rules of the C.B.S .E. and the origin of the Central Board of Secondary Education and observed in paragraph 13 that the Board is mainly a body conducting examinations and its main role and functions are (i) to affiliate institutions from all over the country for the purpose of its examinations; (ii) to arrange to inspect the schools for the purpose of provisional affiliation and periodical inspections, (iii) to admit candidates to the examinations conducted by it; (iv) to conduct examinations and grant certificates/Diplomas and (v) to prescribe courses of instruction for examinations and so on. The court pointed out in paragraph 15 of the judgment that for purposes of recognition by the C.B.S.E. and affiliation, nothing more than a 'no objection certificate' from the Government of the State in which the school is situated is required. The other conditions prescribed say that the school should be run by a Society registered under the Societies Registration Act, that it should have permanent source of income, that it should maintain a particular reserve fund and must appoint qualified teachers and follow the syllabi prescribed by the Board. After scrutinising the rules, the learned judge observed at the end of paragraph 18 that the first respondent-school is not subjected to deep and pervasive control of the State and that the Board does not exercise any control in the matter of establishment of schools nor has it any disciplinary control over the staff or the students. His Lordship observed that in the case of Bharatiya Vidya Bhavan School, only one requirement that the function of the school is a public or a governmental function is alone satisfied and that the two other tests, namely, financial involvement of the State and deep and pervasive control of the State are not satisfied. Hence it is not possible to hold that the first respondent-school is a State within the meaning of the Article 12 of the Constitution. Hence the stipulation in the contract of service to terminate the services with three months' notice cannot be struck down. In my considered opinion, this decision of His Lordship Justice Jeevan Reddy is a complete answer for the various arguments raised by the petitioner's advocate.
11. The Petitioner's advocate relies upon another decision in W.P.No. 9275 of 1987 and W.P.No. 18330 of 1987 which relates to Ramakrishna Vidyalaya which got merged with the present petition school. In these writ petitions, the parents of the students prayed for a writ of mandumus declaring that the demand and collection of security deposit and fees in excess of the regulated fees is illegal. His Lordship Justice V. Neeladri Rao, by judgment dated 15th June, 1990, came to the conclusion that the respondent-school does not come within the ambit of State and hence the petition under Article 226 of the Constitution is not maintainable. The judgment is based upon a Bench judgment dated 1-3-1989 in WP.Nos. 4513 and 5124 of 1986. This judgment is not of much help to advance the cause of the petitioner.
12. The petitioner's advocate strongly relies upon Shri Anadi Mukta Sadguru S.M.V.S.J.M.S. Trust v. V.R. Rudani (2 supra). That decision deals with a case of teachers of an affiliated college run by a public trust who were receiving salaries as per the U.G.C. regulations and the award given by the Vice Chancellor and the institution is one which was receiving grants from the State Government. It was subjected to the administrative control of U.G.C. as well as the University. There were Acts and Regulations governing the institution. When the college refused to pay scales of pay as prescribed by the University Grants Commission, there was a dispute and an award was given by the University Vice-Chancellor and instead of implementing the award, the management of the Trust took the decision to close down the college and surrendered the affiliation of the college and it failed to pay the due salary and allowances, Provident Fund and gratuity. Then the affected teachers of the college filed a writ petition praying for a writ of mandamus. Various contentions were raised including the contentions that the institution is a private institution and hence a writ petition would not lie. The High Court rejected all these contentions and granted relief to the teachers. Then the Trust approached the Supreme Court by way of a special leave. In such a background, the Supreme Court had to deal with the question whether a writ petition under Article 226 of the Constitution is maintainable. In paragraph 14 at page 1611, the Supreme Court observed as follows:
"If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied."
The court then went on to observe that the appellant-Trust was managing the affiliated college to which public money is paid as Government aid and public money paid and Government aid plays a major role in the control, maintenance and the working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to the students. They are subject to the rules and the regulations of the affiliating university. Their activities are closely supervised by the university authorities. Employment in such institutions, therefore, is not devoid of any public character. The court then observed as follows:
"When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party."
The court went on to remark that the law relating to mandamus has under gone a tremendous change and after referring to the development of that law in England and after noticing the distinction between the development of law in England and the conditions under the Indian law and after placing reliance upon the decision in Dwarakanath v. Income Tax Officer , the court observed in paragrpah 19 that the term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12, and then observed that the words "Any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned, is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. The court gave its conclusion in paragraph 21 in the following words, "Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226."
13. It is interesting to see that decision is one relating to a writ of mandamus. The Supreme Court laid down that it is a very wide remedy, but in granting the remedy, it clearly pointed out that if the rights are purely of a private character, no mandamus can issue and if the management of college is purely a private body with no public duty, mandamus will not lie. On the basis of the principles laid down in that decision itself, in the present case, as Bharatiya Vidya Bhavan is a private school run by a registered society and as it is not recognised by the Government of the State and as it does not receive any financial aid from the State or the Central Government and as it is not subjected to the deep and pervasive administrative control of the State or Central Government, no writ of mandamus can lie. A subtle distinction that will have to be noticed in this case is while the Supreme Court dealt with a writ of mandamus, the principles enunciated regarding the writ of mandamus are now sought to be applied by the petitioner's advocate to the present case which is a petition for issuance of a writ of certiorari.
14. The respondent's advocate placed strong reliance upon the judgment of Justice Jeevan Reddy and upon a decision reported in A.P. John Paulraj v. Central Board of Secondary Education (4 supra). The Madras High Court in this decision dealt with the case of a Principal of a private school, namely, Usha Higher Secondary School, West Tambaram, which was affiliated to the C.B.S.E. The learned judge while dealing with the preliminary objection regarding the maintainability of the writ petition exhaustively discussed the case law on the subject, and after referring to Shri Anadi Mukta Sadguru S.M.V.S.J.M.S. Trust v. V.R. Radani (2 supra), emphasised the fact that as indicated by the Supreme Court judgment that public money paid as Government aid plays a major role in control, maintenance and working of the educational institutions and the statutory control exercised by the University authorities acts as a super-added protection and creates a legal right-duty relationship and indicated that courts have maintained a distinction between the statutory bodies and non-statutory bodies. The court pointed out in paragraph 16 the distinction between schools controlled and regulated by the Tamil Nadu Private Schools Regulation Rules and the schools affiliated to C.B.S.E. and pointed that in the case of a school affiliated to C.B.S.E., there is no such rule or regulation. The C.B.S.E. Board does not prescribe the terms of service conditions between the teachers and the school authorities. The Board has only prescribed the minimum qualifications for teachers to be appointed by the school. Of course there is a provision for withdrawal of the affiliation in the event of absence of adequate terms and conditions of the service, ensuring security of service of teachers and then remarked that it will not amount to control over the affairs of the school. The court pointed out in paragraph 20 at page 386 that a writ can be issued against a private body or a private individual only in very exceptional circumstances and not in ordinary cases. Just because an institution has terminated the contract of service the person affected cannot come to this Court under Article 226 and pray for issue of a writ. The principles of that decision fully apply to the facts of our case.
15. P.H. Venkataiah v. A.P. Co-operative Central Agricultural Development Bank Limited (3 supra) is a case of a writ being issued against the Co-operative Central Bank which was enforcing statutory regulations and rules as per the Shops and Establishments Act. In paragraph 17 at page 545 after referring to the decision in , the learned judge observed as follows:
"Any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the state. They may cover and person or body performing public duty. The form of the body concerned is not very much relevant. As the case did not involve obligations under statute, the Supreme Court had to inquire if 'public duties' were involved though non-statutory. So far as issuing a writ against a 'person' or 'authority' to perform statutory duties is concerned, their Lordships had no doubt".
At the end of paragraph 17, His Lordship observed that a writ lies against the Central Bank which is a society for enforcing Rule 20 of the Rules made under the A.P. Shops and Establishments Act. That decision is of no help for deciding the controversies involved in the present case.
16. In the present case, the first respondent-school is a private school run by a society. It does not receive any aid from the State Government or the Central Government. It is not subjected to any deep and pervasive administrative control. In such circumstances, the contract of employment between the petitioner-teacher and the school is purely a private contract. If there is any breach of that contract by issuing the proceedings dated 30-4-1991, it is open to the petitioner to seek relief by way of a civil suit. He is not entitled to come by way of a writ petition under Article 226 of the Constitution.
17. For the various reasons mentioned above, I hold both the points against the petitioner. In the result, the writ petition is dismissed. Each party shall bear its own costs, Advocate fee fixed at Rs. 500/-.
18. It is open to the petitioner to seek such remedies as are open to him under law in other forums.