Himachal Pradesh High Court
Sandeep Keshav vs State Of H.P. & Ors on 22 July, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2753 of 2016 with CWP Nos.
.
3586, 3611, 3616, 3618, 3619, 3699 of 2015 and 2705, 2712, 2810, 2858, 2861 of 2016 Reserved on: 16.07.2019 Date of decision: 22.07.2019.
1. CWP No. 2753 of 2016 Sandeep Keshav .....petitioner Versus State of H.P. & Ors. .....Respondents.
2. CWP No. 3586 of 2015 Neena Bhasin .....petitioner Versus State of H.P. & Ors. .....Respondents.
3. CWP No. 3611 of 2015 Sandeep Keshav .....petitioner Versus State of H.P. & Ors. .....Respondents.
4. CWP No. 3616 of 2015 Sarita Sharma .....petitioner
Versus
State of H.P. & Ors. .....Respondents.
5. CWP No. 3618 of 2015
Vandana Goswami .....petitioner
Versus
State of H.P. & Ors. .....Respondents.
6. CWP No. 3619 of 2015
Hari Chand Sharma .....petitioner
::: Downloaded on - 29/09/2019 01:02:24 :::HCHP
2
Versus
State of H.P. & Ors. .....Respondents.
.
7. CWP No. 3699 of 2015
Sudha Sharma .....petitioner
Versus
State of H.P. & Ors. .....Respondents.
8. CWP No. 2705 of 2016
Sarita Sharma .....petitioner
State of H.P. & Ors.
9. CWP No. 2712 of 2016
Versus
.....Respondents.
Hari Chand Sharma .....petitioner
Versus
State of H.P. & Ors. .....Respondents.
10. CWP No. 2810 of 2016
Vandana Goswami .....petitioner
Versus
State of H.P. & Ors. .....Respondents.
11. CWP No. 2858 of 2016
Neena Bhasin .....petitioner
Versus
State of H.P. & Ors. .....Respondents.
12. CWP No. 2861 of 2016
Sudha Sharma .....petitioner
Versus
State of H.P. & Ors. .....Respondents.
::: Downloaded on - 29/09/2019 01:02:24 :::HCHP
3
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
.
Whether approved for reporting?1 Yes.
For the Petitioner(s): Mr. Neel Kamal Sood, Mr. Deepak Bhasin and Mr. Vasu Sood, Advocates.
For the Respondents: Mr. Bhupinder Thakur and Ms. Svaneel Jaswal, Dy. A.Gs. with Mr. Ram Lal Thakur, Asstt. A.G., for respondents-State.
Mr. Praneet Gupta, Advocate, for respondent No. 2, in all the petitions.
Mr. Rajnish Maniktala, Sr. Advocate r with Mr. Naresh Kumar Verma, Advocate, for respondent No. 3 in CWP Nos. 3586, 3611, 3616, 3618, 3619 and 3699 of 2015 and respondents No. 3 and 4 in CWP No. 2753, 2705, 2712, 2810, 2858 and 2861 of 2016.
Tarlok Singh Chauhan, Judge Petitioners belong to teaching and non-teaching faculty of St. Thomas School, a non aided school (for short 'School'). The first batch of petitions being CWP Nos. 3586, 3611, 3616, 3618, 3619, 3699 of 2015, have been filed for the following substantive relief(s):
I. The respondent No. 2 may kindly be directed to audit the records of respondent No. 3, as postulated in sub- clause 10 of Rule 13 of the CBSE Affiliation Bye-Laws (annexed with the writ petition as Annexure P-1); and further directions may kindly be issued to the respondent 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 4 No. 2 to ensure that the staff of St. Thomas School under the Management of Respondent No. 3, is paid salaries as .
per CBSE Bye - Laws and irregularities committed by respondent No. 3 may kindly be ordered to be cured, by extending all monetary benefits in favour of the petitioner.
II. That the petitioner further prays, that in the event of non-compliance of sub-clause 10 of Rule 13, appropriate directions may kindly be issued to respondents No. 2 and 3 to pay the arrears of revised pay-scale from the date of affiliation i.e. the year 2010 till March, 2014 alongwith interest @ 12% per annum till the date of actual payment, with all consequential benefits.
III. That the respondents may kindly be directed to release DA and yearly increments in accordance with the CBSE Affiliation Bye-Laws w.e.f. the year 2010 on the revised pay-scale, which relief has not been extended in favour of the petitioner till date, except the payment of 65% DA, instead of 113% DA before the year April, 2014, whereas at present only 15% DA is being given on revised pay-scale w.e.f. April, 2014 with further directions to the respondents to release DA on revised pay-scale as per CBSE Affiliation Bye-Laws, with due and admissible interest.
2. Whereas the subsequent batch of petitions being CWP Nos. 2753, 2705, 2712, 2810, 2858, 2861 of 2016, have been filed for the following substantive reliefs:-
a) That the impugned memorandum dated 13.09.2016, Annexure P-11, may kindly be quashed and set aside and further directions may kindly be issued to respondents No. 3 & 4 to maintain the sanctity and decorum of the ::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 5 school, failing which respondent No. 2 may be directed to take action.
.
b) That the respondents No. 1 & 5 may kindly be directed to supervise and regulate the working of the respondents No. 3 and 4 and further audit the irregularities committed by the respondents No. 3 and 4 and also ensure that the employees of the school are paid their legal and legitimate dues.
c) That the respondents No. 3 and 4 may kindly be restrained from conducting any inquiry on the basis of alleged charge-sheet memo Annexure P-11.
3. The learned counsel for respondents No. 3 and 4 has raised preliminary objections regarding the very maintainability of these writ petitions, which according to the respondents are not maintainable as they seek to enforce a contract of personal service.
4. On the other hand, Shri Neel Kamal Sood, learned counsel for the petitioner(s) would contend that since this school is affiliated with CBSE and additionally the right to education is applicable to the school, therefore, all these writ petitions are maintainable.
5. In this background, the moot question is whether the writ petitions are maintainable.
I have heard learned counsel for the parties and have gone through the records of the case.
::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 66. There is no dispute that school is affiliated to CBSE and is imparting education and in terms of the judgment of the .
Hon'ble Supreme Court in Ramesh Ahluwalia vs. State of Punjab and others (2012) 12 SCC 331, is discharging public functions and would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India but how far the writ jurisdiction under Article 226 of the Constitution of India can be exercised in relation to the grant of pay-scales as per the CBSE regulation and in relation to disciplinary action initiated against the erring teachers is the question that is required to be still answered.
7. It is not in dispute that CBSE is only a Society, registered under the Societies Registration Act, 1860 and the school affiliated to it is not a creature of the statute and hence is not a statutory body.
8. The distinction between a body created by the statute and a body governed in accordance with a statute was explained by the Hon'ble Supreme Court in Executive Committee of Vaish Degree College v. Lakshmi Narain (1976) 2 SCC 58, in the following terms:-
"It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the ::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 7 provisions of the statute. In other words the position seems to be that the institution concerned must owe .
its very existence to a statute which would be the fountainhead of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body."
9. Similar reiteration of law can be found in S. S. Rana vs. Registrar, Cooperative Societies and Another (2006) 11 SCC 634, wherein the Hon'ble Supreme Court was dealing with the case of an employee of Kangra Central Cooperative Bank Ltd., which was a Society and had not been constituted under any statute. It is in this background, it was observed that the functions of the bank like any other cooperative societies were mainly regulated in terms of the provisions of the H.P. Cooperative Societies Act, 1968 except as provided in the bye-
laws of the Society. The State had no say in the functions of the Society. Membership, acquisition of shares and all other matters were governed by the bye-laws of the Society. The terms and conditions of an officer of the cooperative society, also governed by the Rules framed by the society, whereas the State did not exercise any direct or indirect control over the affairs of the ::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 8 Society for deep and pervasive control and, therefore, the general regulations under statute like the Companies Act or the .
Cooperative Societies Act would not render the activities of a Company or a Society as subject to control of the State. Such control in terms of the provisions of the Act is meant to ensure proper functioning of the society and the State or statutory authorities would have nothing to do with its day-to-day functions.
10. The school is affiliated to CBSE for the sake of convenience mainly for the recognition of the courses of study and it may also comply with the provisions of the Right of Children to Fee and Compulsory Education Act, 2009 (for short 'the RCE Act')and Rules framed therein (for short 'the RCE Rules'), which apply to any other school.
11. Section 21 of the RCE Act provides for the constitution of a School Management Committee consisting of the elected representatives of the local authority, parents or guardians of children and teachers. The School Management Committee shall perform the functions enumerated under Section 21 of the RCE Act and such other functions as may be prescribed by the RCE Rules. Section 24 of the RCE Act enumerates the duties of a teacher who shall be liable to disciplinary action under the service rules on default committed ::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 9 in performance of their duties. Section 38 of the RCE Act empowers the State Government to frame rules including that of .
the terms and conditions of service of teacher in a school affiliated to CBSE. Rule 19 of the RCE Rules provides for the Grievance Redressal of Teachers whereunder they can move the head teacher, sub-committee, appeal and a second appeal. But service matters, orders of suspension from service and all penalties under disciplinary proceedings initiated by the School Management are specifically excluded from its purview. Meaning thereby, that there is no statutory provisions either in the RCE Act or in the RCE Rules relating to disciplinary action the infraction of which alone can clothe the writ court with jurisdiction.
12. Even though the school is affiliated to CBSE but being unaided is, therefore, not a State within Article 12 of the Constitution of India, as held by the Hon'ble Supreme Court in Satimbla Sharma vs. St. Pauls Senior Secondary School (2011) 13 SCC 760. Nevertheless the school discharges a public duty of imparting education, a fundamental right of the citizens. The school affiliated to CBSE is therefore, an 'authority' amenable to the jurisdiction under Article 226 of the Constitution of India.
::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 1013. However, a judicial review of the action challenged by a party can be resorted to the writ jurisdiction only if there is .
a public law element and not to enforce a contract of personal service, which contract includes all matters relating to the service of an employee confirmation, suspension, transfer, termination etc. (Ref. Apollo Tyres Ltd. vs. C. P. Sebastian (2009) 14 SCC 360).
14. No doubt, a writ could be issued against a private body or person especially in view of the words r / expressions used in Article 226 of the Constitution of India. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought.
15. What follows is if the private body is discharging a public duty imposed on such body, then public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but nevertheless, there must be the public law element in such act. Even though some time it may be difficult to distinguish between public law and private law.
16. Thus writ of mandamus can be issued against a private body, which is not a State within the meaning of Article ::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 11 12 of the Constitution of India and such body is amenable to writ jurisdiction under Article 226 of the Constitution of India and the .
High Court under Article 226 of the Constitution can exercise judicial review of the act challenged by a party but there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.
17. It is settled if the rights are purely of a private character no mandamus can be issued. If the management of the school is purely a private body with no public duty mandamus would not lie. Whereas on the other hand, the aided institution discharging public function by way of imparting education to the students would be amenable to the writ jurisdiction.
18. Even if it is assumed that an educational institutional is imparting public duty, the act complained of must have direct nexus with the discharge of public duty. It is undisputedly a public law action which confers a right upon the aggrieved to invoke extraordinary writ jurisdiction under Article 226 of the Constitution for a prerogative writ.
19. However, individual wrongs or breach of mutual contract without having any public element as its integral part cannot be rectified through petition under Article 226. Wherever Courts have intervened in exercise of jurisdiction under Article ::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 12 226 , either the service conditions were regulated by statutory provisions or the employer had the status of 'State' within the .
expansive definition under Article 12 or it was found that the action complained of has public law element.
20. In Committee of Management, Delhi Public School and Anr. vs. M. K. Gandhi and Ors. (2015) 17 SCC 353, it was held by the Hon'ble Supreme Court that a writ petition against a private school at the behest of a teacher, whose services were terminated, was not maintainable as it was not a State within the meaning of Article 12 of the Constitution and, therefore, no direction could have been given by the High Court to CBSE for interfering with the termination of the teacher and for the proper remedy, the teacher was to file a civil suit for damages, if otherwise maintainable. The aforesaid judgment was though delivered on 16th August, 2007 but was reported in the year, 2015.
21. In Sushmita Basu and Ors. vs. Ballygunge Siksha Samity and Ors. (2006) 7 SCC 680, a teacher of recognized private school had filed a writ petition to fix the salary of the teaching and non-teaching staff of the school and to remove all anomalies in the in the pay-scales as recommended by the Third Pay Commission as extended to other government aided school or government schools.
::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 1322. The learned Single Judge of the High Court allowed the writ petition and directed the Director of School Education to .
enforce parity in payment.
23. However, on appeal, the learned Division Bench of the High Court allowed the appeal and set aside the decision of the learned Single Judge by observing that there were no Acts, statutory rules or even government order directing private unaided educational institutions to implement recommendations of the Third Pay Commission, especially, in the context of the fact that the salaries and emoluments of teachers the of private unaided institutions were not the subject matter of reference to the Third Pay Commission.
24. While affirming the judgment of the learned Division Bench of the High Court, it was observed by the Hon'ble Supreme Court that interference under Article 226 of the Constitution of India to issue writ of mandamus by the Court against a private education institutions would be justified only if a public law element is involved and if its only a private law remedy no writ petition would lie.
25. In K. K. Saksena vs. International Commission on Irrigation and Drainage and Ors, (2015) 4 SCC 670, the Hon'ble Supreme Court surveyed the entire case law on the point and observed as under:-
::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 14"43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person .
or authority is "State" within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. 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 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.
53. It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely:
"(i) when the employee is a public servant working under the Union of India or State;
(ii) when such an employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India; and
(iii) when such an employee is "workmen" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act.
In the first two cases, the employment ceases to have private law character and "status" to such an employment is attached. In the third category of cases, it ::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 15 is the Industrial Disputes Act which confers jurisdiction on the Labour Court/Industrial Tribunal to grant .
reinstatement in case termination is found to be illegal."
26. Similar reiteration of law can be found in a very recent judgment of the Hon'ble Supreme Court in Civil Appeal No(s). 10003 of 2019, titled as Trigun Chand Thakur vs. State of Bihar & Ors., decided on 09.07.2019 wherein a Division Bench of the High Court of Patna had affirmed the judgment of learned Single Judge holding that Management Committee of the private schools is not "State" within the meaning of Article 12 of the Constitution of India and hence the writ petition was not maintainable.
27. A learned Single Judge of the Patna High Court relied upon an earlier Division Bench judgment of the Patna High Court in Chandra Nath Thakur vs. The Bihar Sanskrit Shiksha Board & Ors., 1999 (1) PLJR 529 and held that in matters relating to termination of teachers by Management Committee of the private schools, the writ petition is not maintainable and accordingly dismissed the same.
28. Being aggrieved, the appellant therein filed LPA No. 670 of 1999 before the learned Division Bench of the said Court which came to be dismissed vide order dated 21.01.2008 on the basis of the judgment rendered in Chandra's Nath Thakur case (supra). It was held that a teacher of privately managed school, ::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 16 even though financially aided by the State Government or the Board, cannot maintain a writ petition against an order of .
termination from service passed by the Management Committee.
29. It was further held that even a consent order cannot confer jurisdiction over the Court and does not make the Managing Committee "State" within the meaning of the Article 12 of the Constitution of India. The Hon'ble Supreme Court dismissed the appeal after hearing the parties, perusing the material on record and the judgment in Chandra's Nath Thakur case (supra) by observing "we do not find any ground to take a different view".
30. Reverting back to Ramesh Ahluwalia's case (supra), the same is equally distinguished inasmuch as the employee therein was only directed to file an appeal before the Education Tribunal so constituted.
31. Thus, what can be concluded is that the teaching and non-teaching staff of the school related to CBSE is neither a public servant working under the Union of India or State nor an employee employed by a body, which is a State within the Article 12 of the Constitution of India.
::: Downloaded on - 29/09/2019 01:02:24 :::HCHP 1732. The contract of personal service cannot be enforced in other circumstances even against an authority discharging .
public function under Article 226 of the Constitution of India.
33. In the instant case, the relief sought by the petitioners is not for enforcement of any order issued by the government but for enforcing private right available to them by virtue of contract of service and the same is not enforceable by
34.
r to way of a writ petition in view of the law expounded by the Hon'ble Supreme Court (supra).
Therefore, once this Court holds that it has no jurisdiction then, obviously, it cannot go into the merits of the case much less to decide the same on merits.
35. Since no writ of the teaching and non teaching staff is maintainable against St. Thomas School, Shimla, therefore, all the aforesaid writ petitions are held to be not maintainable and are dismissed as such, reserving liberty to the petitioners to avail such remedy as is available to them under law.
36. It is made clear that in case they choose to avail such remedy, then the period spent in the litigation from the date of the institution to the date of decision shall not be counted while computing limitation. The parties are left to bear their costs.
(Tarlok Singh Chauhan), Judge 22nd July, 2019(sanjeev) ::: Downloaded on - 29/09/2019 01:02:24 :::HCHP