Kerala High Court
Chithra C.R vs State Of Kerala on 6 February, 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 3RD DAY OF APRIL 2017/13TH CHAITHRA, 1939
WP(C).No. 25997 of 2015 (Y)
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PETITIONER :
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CHITHRA C.R., W/O.VIJU C.,
VYSHAKOM, SRA-C-48, SHANTHI NAGAR,
KAZHAKUTTOM (PO), THIRUVANANTHAPURAM.
BY ADV. SRI.MANU V.
RESPONDENTS :
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1. STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY TO
THE GOVERNMENT OF KERALA, GENERAL EDUCATION
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE PRINCIPAL SECRETARY TO
THE GOVERNMENT OF KERALA
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
ANNEXE, THIRUVANANTHAPURAM-695 001.
3. THE DIRECTOR OF PUBLIC INSTRUCTIONS
DIRECTORATE OF PUBLIC INSTRUCTIONS, DPI
JUNCTION, THIRUVANANTHAPURAM.
4. THE ADDITIONAL DIRECTOR OF PUBLIC
INSTRUCTIONS (GENERAL)
DIRECTORATE OF PUBLIC INSTRUCTIONS,
DPI JUNCTION, THIRUVANANTHAPURAM.
5. THE DISTRICT EDUCATIONAL OFFICER
THIRUVANANTHAPURAM EDUCATIONAL DISTRICT,
DISTRICT EDUCATIONAL OFFICE, STATUE JUNCTION,
THIRUVANANTHAPURAM-695 001.
WP(C).No. 25997 of 2015 (Y)
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6. CENTRAL BOARD OF SECONDARY EDUCATION
REPRESENTED BY ITS CHAIRMAN,
HEAD OFFICE, SHIKSHA KENDRA, 2,
COMMUNITY CENTRE, PREET VIHAR, DELHI-110 092.
7. THE CHAIRMAN
CENTRAL BOARD OF SECONDARY EDUCATION,
HEAD OFFICE, SHIKSHA KENDRA, 2,
COMMUNITY CENTRE, PREET VIHAR, DELHI-110 092.
8. THE SECRETARY,
CENTRAL BOARD OF SECONDARY EDUCATION,
HEAD OFFICE, SHIKSHA KENDRA, 2,
COMMUNITY CENTRE, PREET VIHAR, DELHI-110 092.
9. MODEL PUBLIC SCHOOL
REPRESENTED BY ITS MANAGER, MODEL GARDENS
TECHNOCITY, PALLIPPURAM, THIRUVANANTHAPURAM-
695 316.
10. THE MANAGER MODEL PUBLIC SCHOOL,
MODEL GARDENS TECHNOCITY, PALLIPPURAM,
THIRUVANANTHAPURAM-695 316
11. THE SENIOR PRINCIPAL, MODEL PUBLIC SCHOOL,
MODEL GARDENS TECHNOCITY, PALLIPPURAM,
THIRUVANANTHAPURAM-695 316
12. THE PRINCIPAL, MODEL PUBLIC SCHOOL,
MODEL GARDENS TECHNOCITY, PALLIPPURAM,
THIRUVANANTHAPURAM-695 316
R1 TO R5 BY GOVERNMENT PLEADER
SMT.MARRY BEENA JOSEPH
R6 TO R8 BY SRI.K.M.ANEESH, SC,
BY SRI.ADARSH KUMAR, SC,
R9 TO R12 BY ADV. SMT.A.K.PREETHA
BY ADV. SRI.ANIL NARAYANAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 30/1/2017, ALONG WITH WPC. 1514/2016,
WPC. 12912/2016, THE COURT ON 03-04-2017
DELIVERED THE FOLLOWING:
bp
WP(C).No. 25997 of 2015 (Y)
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APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
P1 : A TRUE PHOTOCOPY OF THE CIRCULAR NO.20/2014
DATED 6-2-2014 ISSUED BY THE EIGHTH RESPONDENT
BOARD.
P2 : A TRUE PHOTOCOPY OF THE REPRESENTATION DATED
25-10-2013 SUBMITTED BY THE PETITIONER TO THE
SECOND RESPONDENT.
P3 : A TRUE PHOTOCOPY OF THE REPRESENTATION DATED
30-10-2013 SUBMITTED BY THE PETITIONER TO THE
THIRD RESPONDENT.
P4 : A TRUE PHOTOCOPY OF THE MINUTES OF THE MEETING
OF THE REPRESENTATIVES OF MANAGEMENTS OF
UNAIDED SCHOOLS AND UNAIDED TEACHERS
ORGANISATIONS THAT TOOK PLACE ON 23-5-2014
P5 : A TRUE PHOTOCOPY OF THE REPRESENTATION DATED
11-6-2014 SUBMITTED BY THE PETITIONER TO THE
FOURTH RESPONDENT, WHO IS ALSO THE CHAIRMAN OF
THE MONITORING COMMITTEE OF UNAIDED TEACHERS.
P6 : A TRUE PHOTOCOPY OF THE REPRESENTATION DATED
14-6-2014 SUBMITTED BY THE PETITIONER TO THE
HONOURABLE MINISTER OF EDUCATION, GOVERNMENT OF
KERALA.
P7 : A TRUE PHOTOCOPY OF THE REPRESENTATION DATED
18-6-2014 SUBMITTED BY THE PETITIONER TO THE
FIFTH RESPONDENT.
P8 : A TRUE PHOTOCOPY OF THE REPRESENTATION DATED
20-06-2014 SUBMITTED BY THE PETITIONER TO THE
FIFTH RESPONDENT.
P9 : A TRUE PHOTOCOPY OF THE LAWYER NOTICE DATED
04-09-2014 ISSUED ON BEHALF OF THE PETITIONER
TO THE RESPONDENTS 10 AND 11.
WP(C).No. 25997 of 2015 (Y)
---------------------------
P10 : A TRUE PHOTOCOPY OF THE REPLY LETTER DATED
20-09-2014 ISSUED ON BEHALF OF THE RESPONDENTS
10 AND 11
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.S. TO JUDGE
bp
ANU SIVARAMAN, J.
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W.P(C).No. 25997 of 2015
&
W.P(C).Nos. 1514 and 12912 of 2016
-----------------------------------------------
Dated this the 3rd April, 2017
JUDGMENT
These writ petitions raise the issue of directions for enforcement of conditions of service of teachers appointed in unaided schools in the State. W.P(C).No.25997 of 2015 is filed by a teacher employed by the 10th respondent's school seeking consideration of her claims for payment of fair wages in accordance with the judgment of this Court in State of Kerala v. Mythri Vidya Bhavan English Medium School and another [2012 (4) KHC 321]. W.P(C).No. 1514 of 2016 is filed by a teacher of the respondent-school seeking directions to the respondents not to terminate the services of the petitioner without conducting a domestic enquiry. W.P(C).No.12912 of 2016 is filed by a teacher of the 3rd respondent's school challenging Exhibits P9 and P11 orders removing her from service.
2. Heard learned counsel for the petitioners, learned counsel appearing for the contesting respondents and the WP(C).25997/15 & connected cases 2 learned Senior Government Pleader as well as the Amicus Curiae appointed in by this Court by order dated 17.3.2016.
3. The learned counsel appearing for the writ petitioners would contend that unaided schools are also subject to the provisions of Chapter XIVAA of the Kerala Education Rules. It is contended that the no-objection certificate granted by the State Government for the purpose of affiliation to private unaided schools from the CBSE amounts to a recognition granted to the school under the Kerala Education Act and Rules and that every private school would therefore be a recognised school under the definition clause of the Act. The provisions of the K.E.R would therefore be applicable to such schools and a writ petition under Article 226 of the Constitution would be maintainable in this Court as against the Managers of such schools by whatever designation they are known, to enforce the statutory duties and responsibilities. Moreover, it is contended that with the enactment of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as 'the Right to Education Act'), recognition of private educational institutions have become mandatory and the provisions of the K.E.R are statutorily made applicable to all WP(C).25997/15 & connected cases 3 private schools which are subject to the provisions of the said Act.
4. Reliance is placed on the decisions of this Court in Francis v. Carmel English Medium High School [2004(3) KLT 149], Suter Paul v. Sobhana English Medium High School [2003 KHC 1230] and Bincy Raj D.R & Ors. v. Central Board of Secondary Education Shiksha Kendra & Ors. [2015(3) KLJ 707] and on several other decisions to contend that issues raised in these writ petitions can be considered by this Court in exercise of it's jurisdiction under Article 226 of the Constitution of India.
5. The learned amicus curiae, Sri.Surya Binoy would contend that the imparting of education is evidently a public duty imposed on any body or individual who runs an educational institution whatever be the nature of such institution. Relying on the decision of a Division Bench of this Court in St.Joseph's Model High School v. Varghese [2009 (3) KLT 237] it is contended that all recognised unaided schools in the State are duty bound to comply with the provisions of Chapter XIVAA of the Kerala Education Rules. Reliance is also placed on the provisions of the Right to Free and Compulsory WP(C).25997/15 & connected cases 4 Education Act and the Rules made thereunder to contend that the conditions of service of teachers of unaided schools are also subject to regulation by statute and no management can claim that they are not bound to follow the same. It is therefore contended that a management running an educational institution cannot contend that it has the right to hire and fire at will and that disciplinary proceedings are a matter of administrative convenience and can be dispensed with at the option of the management. It is stated that it is trite law that the Managers of recognised schools are also subject to the supervisory jurisdiction of the educational officers of the State and a writ would lie as against them, if they take action against their employees in violation of the provisions of Chapter XIVAA KER. It is further contended that the CBSE, which is a Society registered under the Societies Registration Act is also discharging public functions and the affiliation byelaws of the CBSE have the force of law. The refusal on the part of private college management to abide by the provisions of the said byelaws would render the said management amenable to writ jurisdiction for enforcing the compliance with such byelaws. Relying on the decision of the Apex Court in Ramesh WP(C).25997/15 & connected cases 5 Ahluwalia v. State of Punjab and others [(2012)12 SCC 331], it is contended that in the case of enforcement of contract of service of a teacher in educational institution, the legal position stands concluded that in view of the public nature of the duties imposed, a writ for enforcement of such contract would be clearly maintainable before this Court.
6. The contention raised on behalf of the managements is to the effect that even if the position that a writ petition would be maintainable against a private body or even in an individual exercising a public duty is accepted, such writ would be specifically maintainable only for enforcing that public duty and not for any other purpose. It is contended that a contract of service being not specifically enforceable except in certain enumerated conditions, the writ petitions with the prayers sought for would not be maintainable as against the managements of private unaided schools. In support of this contention, the learned counsel appearing for the managements would rely on several decisions of the Apex Court and of this Court.
7. The learned amicus curiae, Sri.Liju J.Vadakedom relies on the decisions of this Court in Director, Lisie Hospital, WP(C).25997/15 & connected cases 6 Kochi v. Anson Fernandez and others [2015(5) KHC 96 (DB)] to contend that a writ can issue against a private body under Article 226 of the Constitution of India only to enforce that public function which it is obliged to perform and which can be the subject matter of a writ proceeding. He contends that in K.K.Saksena v. International Commission on Irrigation and Drainage and others [(2015)4 SCC 670], the Apex Court has held that while a private body would also be amenable to writ jurisdiction under Article 226 of the Constitution, only those decisions which have a public element could be subjected to judicial review by the High Court. Relying on the decision of the Apex Court in Secretary, A.P.D. Jain Pathshala and others v. Shivaji Bhagwat More and others [(2011) 13 SCC 99], he would contend that a contract of personal service could not be enforced by ordering reinstatement of a dismissed employee in the absence of a positive obligation in the nature of protection of Article 311 of the Constitution, an award under the Industrial Disputes Act or where there is a breach of statutory obligation. He would also rely on the decisions of the Apex Court in Regina v. St.Aloysius Higher Elementary School (1971 KHC 775), WP(C).25997/15 & connected cases 7 Vidya Ram Misra v. Managing Committee, Shri Jai Narain College [1972 KHC 413], Dipak Kumar Biswas v. Director of Public Instruction and others [(1987)2 SCC 252]. A decision of this Court in Bindu K.B v. State of Kerala and others [2014(4) KHC 772] is also relied upon to contend that a writ would not lie for the enforcement of a personal contract of service.
8. The learned Senior Counsel Sri.K.Gopalakrishna Kurup appearing for the respondents in W.P(C).No.12912 of 2016 relied on the decisions of the Supreme Court in Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others [AIR 1976 SC 888], Satimbla Sharma v. St.Paul's Senior Secondary School [2011 (3) KLT 674 (SC)] and a Full Bench of this Court in John Kuriakose v. State of Keala [2015(1) KLT 720 (FB)] to contend that no writ could issue for reinstatement of an employee in a case of this nature. It is submitted that the only remedy available to teachers of private education institutions would be a suit for damages.
9. I have considered the contentions advanced on all sides. It is agreed that the question whether a Writ Petition WP(C).25997/15 & connected cases 8 would be maintainable against the management of a school irrespective of whether it is an aided school or not in view of the public duty it performs is settled in the affirmative by decisions of this Court. All that remains to be considered is therefore whether conditions of service of teachers of unaided schools are matters which are capable of being adjudicated upon in exercise of the power under Article 226 of the Constitution of India. The contention raised by the management is that such matters are in the exclusive realm of personal contract of service and no writ can be issued to enforce such contracts.
10. The learned Government Pleader would submit that the provisions of the Kerala Education Rules have been specifically made applicable to unaided institutions also going by the provisions of the RTE Act and the Rules framed thereunder. It is contended that the Rules framed under the RTE Act by the Government of Kerala provide for applicability of the Kerala Education Rules to unaided schools as well. In the above view of the matter, it is stated that the control of the educational authorities of the State Government over WP(C).25997/15 & connected cases 9 unaided institutions as well can no longer be denied. The learned Government Pleader also brought to my notice the judgment of a learned single Judge of this Court dated 31.5.2016 in W.P(C).No.3492 of 2011 wherein it has been held hat in case of an unaided school affiliated to the CBSE, the authority to take action against the schools would be the CBSE and not the State Government or the educational authorities under the K.E.R. It has been held that Chapter XIVAA of KER, which provides for conditions of service of teaching and non teaching staff of unaided recognised schools does not provide any authority to the District Educational Officer to take action against the management on the grounds mentioned in the show cause notice which was under challenge.
11. I have considered the rival contentions. The finding of a learned Single Judge in Bindu K.B's case (supra) held that the later Bench decision of the Apex Court in Ramesh Ahluwalia's case (supra) is sub silentio the finding of an earlier decision of a co-equal Bench in Binny Ltd. and another v. V.Sadasivan and others [(2005)6 SCC 657] has been affirmed by a Division Bench of this Court. However, I WP(C).25997/15 & connected cases 10 notice that the decision of the learned Single Judge was rendered in a case of disciplinary proceedings initiated against an employee by a private body (a society registered under the Travancore Cochin Scientific and Charitable Societies Registration Act) involved in assisting Local Self Government Institutions in planning and developing water conservation and sanitation. The learned single Judge proceeded on the reasoning that a Writ under Article 226 of the Constitution of India can be issued against a private body to compel it to perform a statutory function or against any person or authority performing a public duty, owing a positive obligation to the affected party. On facts, it was found that there was no such public duty element or legal obligation in the case on hand in that case. The distinction regarding the cases where mandamus was found maintainable being cases relating to educational institutions was also specifically referred to by the Division Bench which affirmed the judgment of the learned single Judge in Bindu K.B's case (supra).
12. In a case where writ is sought against a private body, authority or person, it has to be examined whether the duty WP(C).25997/15 & connected cases 11 owed is a public duty or if the party aggrieved has a legal right which has been infringed. I agree with the finding that the term "for any other purpose" occurring in Article 226 of the Constitution of India has to mean for the enforcement of any legal right an the performance of any legal duty". Having found that the management of unaided school undoubtedly discharges a public duty, the question which is to be considered is whether the right of teacher in private unaided educational institutions can be enforced by this Court in exercise of its powers under Article 226 of the Constitution of India.
13. To answer the question raised in these writ petitions, it is necessary to examine the provisions of the RTE Act. Section 2(n) of the RTE Act reads as follows:
"2. Definitions.
xx xx
(n) "school" means any recognised school imparting elementary education and includes-
(i) a school established, owned or controlled by the appropriate Government or a local authority;
(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority; expenses from WP(C).25997/15 & connected cases 12 the appropriate Government or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority."
14. Section 12(1)(2) provides that all schools including unaided schools have to admit students belonging to weaker section of the Society. Section 18 provides that no school shall be established or function without obtaining a certificate of recognition as prescribed. Section 19 stipulates that the norms specified in the schedule shall be met for obtaining recognition. Sections 23 and 24 provide for qualification, conditions of service, duties of teachers and redressal of grievances in such manner as may be prescribed. Section 35(2) of the RTE Act provides power to the State Government to issue guidelines and give directions as it deems fit to School Management Committee also. Power is also vested in the State Government by Section 38 to frame rules.
15. The rules framed by the State of Kerala provide for School Management Committee to carry out the monitoring of the proper functioning of the schools. Rule 14 provides for WP(C).25997/15 & connected cases 13 recognition of schools including unaided schools which have obtained no objection certificate for affiliation to other boards of education. Rule 17 prescribes that the salary and allowances and terms and conditions of teachers shall be in accordance with the regulations and guidelines issued by the Government from time to time. A detailed machinery for grievance redressal is also provided in Rule 19. Rule 25 provides for a State Advisory Council to carry out the function enumerated in Rule 26.
16. It is, therefore abundantly clear that the recognition of unaided schools and the terms and conditions of service of teachers appointed thereto are now specifically matters which are governed by statutory provisions and modulated by rules formulated thereunder. The source of power for issuance of the RTE Act is the insertion of Article 21A in the Constitution by the Constitution (Eighty-sixth Amendment) Act, 2002. In the light of the above statutory provisions, the question whether a writ can be issued to enforce the service conditions of teachers of recognised unaided schools is no longer in issue which requires a detailed consideration. In the light of the WP(C).25997/15 & connected cases 14 provisions enumerated above, what is now sought for by the petitioners in the writ petition is only the enforcement of the statutory right of the teachers under the RTE Act and the Rules framed thereunder.
17. This clearly amounts to the owing of a positive obligation to the affected parties, who, in the instant case, are teachers who feature as writ petitioners before this Court. This Court has, in Bincy Raj D.R's case (supra) clearly held that decisions regarding suspension and dismissal of teachers are matters which can be gone into by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. I, therefore, have no hesitation to hold that the decisions finding that personal contracts of service cannot be specifically enforced have no application in the instant case and the writ petitions filed to enforce the statutory rights of the petitioners are maintainable and this Court has ample jurisdiction to entertain these writ petitions.
18. In the result, W.P(C).No. 25997 of 2015 is ordered directing respondents 2 and 6 to take up and consider the WP(C).25997/15 & connected cases 15 representations preferred by the petitioners seeking payment of fair wages pending before them and pass orders thereon in accordance with law taking note of the provisions of the KER as well as the RTE Act and the Rules framed thereunder, after hearing the petitioners and the management. Orders, as directed above, shall be issued within a period of three months from the date of receipt of a copy of this judgment.
W.P(C).No.12912 of 2016 is ordered setting aside Exhibit P11 order and directing the 3rd respondent to take up and consider the appeal preferred by the petitioner and pass orders thereon within one month from the date of receipt of a copy of this judgment, in accordance with law, considering the claim raised by the petitioner that the disciplinary proceedings were conducted without complying with the principles of natural justice. In case the appeal is not disposed of within the time specified, the petitioner will be entitled to reinstatement.
W.P(C).No.1514 of 2016 is ordered directing that the petitioner's services shall not be terminated without conducting an enquiry and after giving her a full opportunity to defend herself in accordance with law.
WP(C).25997/15 & connected cases 16 The writ petitions are ordered accordingly.
Sd/-
ANU SIVARAMAN JUDGE vgs