Kerala High Court
Sandhya V.Nair vs The State Of Kerala on 21 February, 2019
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940
WP(C).No. 17398 of 2017
PETITIONERS:
1 SANDHYA V.NAIR
AGED 37 YEARS, W/O. MADHUKURUP, WORKING AS H.S.A.
MALAYALAM, ZION PUBLIC SCHOOL, SWARAJ, THOPPIPALA
P.O., KATTAPANA, IDUKKI DISTRICT-685 511,RESIDING AT
SINDHU BHAVANAM, NARIAMPARA P.O.,-685 511
2 GEORGEKUTTY AUGUSTINE
AGED 57 YEARS, S/O. T.J.AUGUSTINE,THENAMMAKKAL HOUSE,
UPPUTHARA P.O.,IDUKKI DISTRICT,
UPPUTHARA-685 505.(TEACHER, ZION PUBLIC SCHOOL,
THOPPIPALA P.O.,KATTAPANA)
3 SIJU. T.C
S/O CHACKO, AGED 38 YEARS, THENAMKUZHIYIL
HOUSE,N.R.CITY, RAJAKKAD P.O.,
IDUKKI DISTRICT-685 566.
BY ADV. SRI.RAJU SEBASTIAN VADAKKEKKARA
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY,DEPARTMENT OF EDUCATION,
STATE SECRETARIAT,THIRUVANANTHAPURAM.
2 THE DISTRICT EDUCATIONAL OFFICER
KATTAPANA EDUCATION DISTRICT,KATTAPANA P.O.,
IDUKKI DISTRICT,PIN-685511.
3 THE PRESIDENT
SCHOOL MANAGING COMMITTEE, ZION PUBLIC SCHOOL,SWARAJ,
THOPPIPALA. P.O., KATTAPANA,
PIN-685 511.
WP(C)Nos.17398 & 21369 of 2017
-: 2 :-
4 THE MANAGER
ZION PUBLIC SCHOOL, SWARAJ, THOPPIPALA
P.O.,KATTAPANA, PIN-685 511.
5 THE PRINCIPAL
ZION PUBLIC SCHOOL, SWARAJ,THOPPIPALA P.O.,
KATTAPANA-685 511.
6 THE CENTRAL BOARD OF SECONDARY EDUCATION
REPRESENTED BY ITS DEPUTY SECRETARY,AFFILIATION,
CENTRAL BOARD OF SECONDARY
EDUCATION,THIRUVANANTHAPURAM.
7 THE DEPUTY DIRECTOR OF EDUCATION
THODUPUZHA [HAVING JURISDICTION OVER KATTAPANA
DISTRICT].
R3 TO R5 BY ADV. SRI.GEORGE POONTHOTTAM (SR.)
R1, R2 & R7 BY SMT.K.R.DEEPA, SR.GOVT.PLEADER
R6 BY ADV.MR.S.NIRMAL
SRI.V.A. MUHAMMED, AMICUS CURIAE
THIS WRIT PETITION (CIVIL) HAVING BEEN HEARD ON 19.02.2019,
ALONG WITH WP(C).21369/2017, THE COURT ON 21.02.2019 PASSED THE
FOLLOWING:
WP(C)Nos.17398 & 21369 of 2017
-: 3 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY,THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940
WP(C).No. 21369 of 2017
PETITIONER:
ZION PUBLIC SCHOOL
SWARAJ, THOPPIPALA PO, KATTAPANA, IDUKKI 685 511,
REPRESENTED BY ITS MANAGER FR.JERIN MANJALY
BY ADV. SRI.GEORGE POONTHOTTAM (SR.)
RESPONDENTS:
1 DISTRICT EDUCATIONAL OFFICER
KATTAPANA PO, IDUKKI 685 511
2 SANDHYA V. NAIR
W/O.MADHUKURUP, SINDHU BHAVANAM, NARIAMPARA PO,
IDUKKI 685 511
3 GEORGEKUTTY AUGUSTINE
S/O.T.J.AUGUSTINE, THENAMMAKKAL HOUSE, UPPUTHARA
PO, IDUKKI 685 505.
4 SIJU T.C.
S/O.CHACKO, THENAKUZHIYIL HOUSE, N.R.CITY, RAJAKKAD
PO, IDUKKI 685 566
SMT.K.R.DEEPA, SR.GOVERNMENT PLEADER
SRI.V.A.MUHAMMED, AMICUS CURIAE
THIS WRIT PETITION (CIVIL) HAVING BEEN HEARD ON 19.02.2019,
ALONG WITH WP(C).17398/2017, THE COURT ON 21.02.2019 PASSED THE
FOLLOWING:
WP(C)Nos.17398 & 21369 of 2017
-: 4 :-
"CR"
Order
Chitambaresh, J.
"Whether the educational officers under the Kerala Education Act, 1958 and the Rules framed thereunder have disciplinary control over the teachers working in schools affiliated to the Central Board of Secondary Education ('CBSE' for short)?"
The above is the question referred to us for answer in view of the apparent conflict between the decisions in WP(C).No.3492/2011 and WP(C).No.25997/2015 and connected cases [2017(3) KLT SN 74].
2. WP(C).No.21369/2017 has been filed by the management of the school affiliated to CBSE challenging the order of the District Educational Officer directing the teachers to be reinstated in service. WP(C)No.17398/2017 has been filed by the three teachers therein for a direction to reinstate them in service in implementation of the order of the District Educational Officer. We heard Mr.George Poonthottam, Senior Advocate on behalf of the petitioner in WP(C).No.21369/2017 and Mr.Raju Vadakkekara, Advocate on WP(C)Nos.17398 & 21369 of 2017 -: 5 :- behalf of the petitioners in WP(C).No.17398/2017. We also heard Mrs.K.R.Deepa, Senior Government Pleader, Mr.Nirmal S., Standing Counsel for CBSE as well as Mr.V.A.Muhammed, Advocate as amicus curiae in the case.
3. The following abbreviations are used:
i. The Kerala Education Act, 1958 = K.E.Act. ii. The Kerala Education Rules, 1959 = K.E.R. iii. The Right of Children to Free and Compulsory Education Act, 2009 = R.C.E.Act.
iv. The Kerala Right of Children to Free and
Compulsory Education Rules, 2011 =
R.C.E.Rules.
4. Section 2(7) of the K.E.Act defines 'private school' as an aided or recognised school and Section 2(8) thereof defines 'recognised school' as a private school recognised by the Government under the K.E.Act. A school affiliated to CBSE neither gets any aid from the State Government nor does it require any recognition from the State Government for it to be termed as 'private' or 'recognised'. Only a No Objection Certificate is required to be issued by the State Government for permission to affiliate such school to CBSE as per the executive orders issued by the State WP(C)Nos.17398 & 21369 of 2017 -: 6 :- Government.
5. Chapter XIV(AA) of the K.E.R. deals with conditions of service of teaching and non-teaching staff of 'recognised unaided' schools which obviously do not take in the schools affiliated to CBSE. Rule 3 of Chapter XIV(AA) K.E.R. necessitating a domestic enquiry to be conducted before the termination of the services of a teacher or non-teaching staff does not therefore apply. Neither the K.E.Act nor the K.E.R. clothes the educational officers with the jurisdiction to exercise disciplinary control over the teachers and non-teaching staff in schools affiliated to CBSE.
6. However the definition of 'school' in Section 2(n) of the R.C.E.Act takes in any recognised school imparting elementary education and includes an unaided school not receiving any kind of aid or grant. The school affiliated to CBSE does not receive any aid or grant to meet its expenses from the appropriate Government or the local authority and is hence covered by the R.C.E.Act. Section 21 of the R.C.E.Act requires a School Management Committee to be constituted in such school to perform the functions enumerated thereunder and also as prescribed. The term 'prescribed' has been defined in Section 2(l) of the R.C.E.Act to mean prescribed by Rules made under the R.C.E.Act and the rule making power can be traced WP(C)Nos.17398 & 21369 of 2017 -: 7 :- to Section 38 of the R.C.E.Act.
7. There are different levels at which the grievance of the teachers can be redressed under Rule 19 of the R.C.E.Rules starting from the Head Teacher till the Deputy Director of Education of the district. Every school affiliated to CBSE has to constitute a sub-
committee for redressal of the grievances of teachers remaining unresolved whose decision can be appealed against to a committee. But it is relevant to note that service matters, orders of suspension from service and all penalties under disciplinary proceedings initiated by the school management are excluded. The proviso to Rule 19(2) of the R.C.E.Rules is extracted below:
"Provided that no service matters, orders of suspension from service, and all penalties under disciplinary proceedings initiated by the education department or the school management, shall be taken up before the sub-committee."
The appellate committee shall consist of members nominated by the Director of Public Instruction/Deputy Director of Education under the chairmanship of the Assistant Educational Officer or WP(C)Nos.17398 & 21369 of 2017 -: 8 :- District Educational Officer.
8. It goes without saying that the appellate committee comprising of the educational officers under the K.E.Act is denuded of jurisdiction in respect of matters excluded from the sub- committee as aforesaid. Matters exempted from the purview of the sub-committee (whose decision is appealed against) continue to be a taboo for the appellate committee too constituted under the R.C.E.Rules. Moreover no such committee to entertain an appeal has been constituted by the State Government hitherto by notification nor any rules prescribed detailing the procedure. Therefore the educational officers under the K.E.Act and the K.E.R even if they are part of the appellate committee have no say in service matters or in relation to suspension or penalty.
9. It is submitted that CBSE which is registered under the Societies Registration Act has issued a communication dated 25.8.2017 requesting all its affiliated schools to frame service rules specifying service conditions. No service rules have hitherto been framed by the school in question and what is in place is a bye-laws which include also 'disciplinary procedure' in Part 44 thereof. The bye-laws is in the realm of contract between the CBSE which is a society on the one hand and the affiliated school on the other hand WP(C)Nos.17398 & 21369 of 2017 -: 9 :- wherein the provisions of the K.E.Act or K.E.R. have no play. The bye-laws read with Section 24(2) of the R.C.E.Act exposes the teacher for disciplinary action under the Service Rules for default committed in performance of his duties.
10. The decision in WP(C).No.25997/2015 and connected cases [Chithra v. State of Kerala (2017 (3) KLT SN 74)] did not specifically deal with the powers of the educational officers under the K.E.Act and K.E.R. We approve the decision in WP(C).No.3492/2011 to the effect that the educational officers under the K.E.Act or K.E.R. have no authority over teachers in the school affiliated to CBSE.
11. We answer the reference as follows:
i. The educational officers under the K.E.Act and K.E.R. have no disciplinary control (particularly in matters of suspension and penalty in disciplinary proceedings) over teachers in the school affiliated to CBSE.
ii. The educational officers under the K.E.Act and K.E.R. have no jurisdiction to order reinstatement in service of teachers in the school affiliated to CBSE and the management is not obliged to honour the same.
WP(C)Nos.17398 & 21369 of 2017 -: 10 :- The Registry to post the writ petitions for hearing before the single Bench as per roster.
Sd/-
V. CHITAMBARESH, JUDGE Sd/-
R. NARAYANA PISHARADI, JUDGE Sha/190219