Karnataka High Court
Smt Anuradha M V vs The State Of Karnataka on 8 December, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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WP No. 24281 of 2022
C/W WP No. 23058 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
®
WRIT PETITION No.24281 OF 2022
C/W
WRIT PETITION No.23058 OF 2021 (S-RES)
IN W.P.No:24281/2022:
BETWEEN:
1. SMT.ANURADHA.M.V.
W/O GURUDATTA.P.V
AGED ABOUT 46 YEARS,
#1, 1ST FLOOR, VINAYAKANAGAR,
5TH MAIN, IAF POST,
YELAHANKA, BENGALURU-560 063.
...PETITIONER
(BY SRI.M.P.SRIKANTH., ADVOCATE)
AND:
Digitally
signed by 1. THE STATE OF KARNATAKA,
KIRAN BY ITS PRINCIPAL SECRETARY
KUMAR R
Location: TO THE GOVERNMENT
HIGH PRIMARY & SECONDARY EDUCATION
COURT OF
KARNATAKA DEPARTMENT,
M.S.BUILDING, DR.AMBEDKAR ROAD,
BENGALURU-560 001.
2. THE COMMISSIONER
FOR PUBLIC INSTRUCTIONS
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BENGALURU-560 001.
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3. THE DIRECTOR, PRIMARY EDUCATION,
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BENGALURU-560 001.
4. THE MANAGEMENT,
NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
REP BY ITS SECRETARY.
5. NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
REP BY ITS PRINCIPAL.
6. MS.MALATHY R NARAYAN,
THE PRINCIPAL (SENIOR SCHOOL)
NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
7. MS.MINI JAYAN,
THE PRINCIPAL (PRIMARY SCHOOL)
NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
8. MR.MUTTAPPA,
MANAGER-NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
9. SMT.SHANTAMMA GOPALAKRISHNA,
SENIOR PRINCIPAL,
NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
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5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
10. DR.BINDU HARI,
DIRECTOR-NATIONAL PUBLIC SCHOOL
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
11. DR.K.P.GOPALAKRISHNA,
CHAIRMAN-NATIONAL PUBLIC SCHOOL,
1036-A, PURANDARAPURA,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560 010.
12. THE REGIONAL OFFICER,
CENTRAL BOARD OF SECONDARY EDUCATION,
DEGREE COLLEGE BUILDING,
HESARAGHATTA MAIN ROAD,
NEAR SAPTHAGIRI HOSPITAL
CHIMNEY HILLS,
CHIKKABANAVARA, BENGALURU-560 090.
13. THE DEPUTY DIRECTOR OF PUBLIC
INSTRUCTIONS,
BANGALORE NORTH-1 OFFICE,
RAJAJINAGAR, BENGALURU-560 010.
14. THE BLOCK EDUCATION OFFICER,
BANGALORE NORTH-1 OFFICE,
RAJAJINAGAR, BENGALURU-560 010.
15. MS.T.N.GAYATHRI DEVI,
THE JOINT DIRECTOR
(SARVA SHIKSHANA ABHIYANA)
NEW PUBLIC OFFICES,
NRUPATHUNGA ROAD,
BENGALURU-560 001.
...RESPONDENTS
(BY SRI.B.RAVINDRANATH, AGA FOR R-1 TO R-3, R-13 & R-14;
VIDE ORDER DATED 06.02.2023, NOTICE TO PRIVATE
RESPONDENTS IS DISPENSED WITH)
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WP No. 24281 of 2022
C/W WP No. 23058 of 2021
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ORDER DATED:21.10.2022 ON APPEAL No.5/2021 PASSED
BY THE R-3 VIDE ANNEXURE-AX, ETC.
IN W.P.No.23058/2021
BETWEEN:
1. THE SENIOR PRINCIPAL
NATIONAL PUBLIC SCHOOL,
RAJAJINAGAR,
BENGALURU-560 010.
2. THE MANAGER (HRD)
NATIONAL PUBLIC SCHOOL,
RAJAJINAGAR,
BENGALURU-560 010.
...PETITIONERS
(BY SRI.AMIT ANAND DESHPANDE., ADVOCATE)
AND:
SMT.ANURADHA.M.V.,
W/O GURUDATTA.P.V,
AGED ABOUT 45 YEARS,
#1, 1ST FLOOR, VINAYAKANAGAR,
5TH MAIN, IAF POST,
BEGLUR MAIN ROAD,
YELAHANKA,
BENGALURU-560 063.
...RESPONDENT
(BY SRI.B.R.VISHWANATH, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED ORDER PASSED BY THE LEARNED XV ADDL.
CITY CIVIL AND SESSIONS JUDGE AT BANGALORE (CCH No.3)
IN MA(EAT)12/2017 DATED:19.11.2021 VIDE ANNEXURE-A,
ETC.
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WP No. 24281 of 2022
C/W WP No. 23058 of 2021
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 12.10.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. W.P.No.24281/2022 is preferred by the Teacher (hereinafter referred to as, "the employee"), whereas W.P.No.23058/2021 is preferred by the Management of the respondent-Education Institution (hereinafter referred to as, "the Institution").
2. On 30.06.2013, the employee was appointed as a faculty member in the department of Pre-primary - Primary - Secondary - Senior Secondary/support staff. The order of appointment stated that the employee would initially be in probation for a period of one year and on satisfactory completion of such probationary period, she would be appointed as a permanent faculty member. The employee also executed a service contract on the same day. The relevant clauses are extracted and considered later in this order.
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3. It is the case of the employee that on 23.03.2017, she was orally informed by the Principal that she could not be retained for the ensuing academic year 2017-18 and in response, she had addressed an e-mail indicating her willingness to continue till her retirement. She also contended that there were e-mails exchanged in this regard for nearly three months.
4. The employee, on 20.07.2017, was issued with a Memorandum, which reads as under:
"You have been employed as a teacher in National Public School Organisation since 3rd July 2014. Your performance as a teacher has been consistently declining. You have been misbehaving with the staff during school hours within the premises. You have also used unparliamentary and uncivilized language against the Principal of the School and also the Principal of the primary section. You refused to accept the notice served on 17.07.2017 under which your explanation was called for. It has therefore been decided to initiate disciplinary action against you.-7-
NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 Pending disciplinary action, you are hereby directed not to report for duty at the school and you are exempted from attending the school with immediate effect. You will be paid salary payable to you during the period of exemption from duty.
You shall continue to be exempted from attending the school until further orders. Your address in our records is as under:
Ms.Anuradha.M.V No.1, 1st Floor, Vinayakanagar, 5th Main, IAF Post, Baglur Main, Yelahanka, Bengaluru-560 063 If there is any change in your address, please inform the undersigned. In the absence of such communication, all communication to you will be sent to the above address and also through the email ID [email protected] and the same shall be treated as valid communication for all purposes."
5. She, thus, submitted that on 20.07.2017, the Management had informed her that they would be initiating disciplinary action and also called upon her to not report for duty, and that she was exempted from attending the Institution, with immediate effect. She also -8- NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 submitted that about two months thereafter, on 04.09.2017, she was served with a communication in the following terms:
"Please refer to your appointment in National Public School, 5th Block, Rajajinagar, Bengaluru-560 010 as faculty member vide appointment dated 30th June 2014.
As per the above appointment order, you reported for duty on 3rd July 2014.
As per the service conditions of your appointment, you were on probation from 3rd July 2014. However your probation has not been declared as satisfactory till now, as your services are not considered up to the mark. Consequently, as of today, you continue to be on probation.
Since your appointing authority considers your services are not satisfactory and no longer required, your services therefore are hereby terminated with immediate effect."
6. Thus, by virtue of this communication dated 04.09.2017, the Management stated that the services of the employee were not satisfactory and that she was no longer required, following which her services were -9- NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 terminated. It was also stated that since her probationary period had not been declared as satisfactory, she had continued to be on probation.
7. Being aggrieved by this order of termination, the employee filed an appeal before the Educational Appellate Tribunal (for brevity, referred to as "the Tribunal") on 30.10.2017.
8. This appeal was contested vigorously by the Management and ultimately, by the impugned order dated 19.11.2021, the appeal filed by the employee was allowed and the order of termination passed against her on 04.09.2017 was set aside. In addition, the Management has also been directed to take back the employee into service and allot classes as per their procedure, along with a direction to the Management to pay salary to the employee. The Management, being aggrieved by the allowing of the appeal by the employee, preferred W.P. No. 23058/2021.
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9. The employee preferred W.P.No.24281/2022 seeking quashing of the order dated 21.10.2022, by which her representation was considered as an appeal under Section 130 of the Education Act, 1983, and was dismissed by the Competent Authority.
10. A further prayer in the present petition is also made to direct the respondents to consider the representation made by her vide Annexures-AP, AP1 and AQ.
11. It is the case of the Management that the employee was appointed on 30.06.2004 with a clear stipulation that she will be on probation for a period of one year and since, admittedly, the period of probation was not declared as being successful, she continued to be in probation and hence, the Management was well within its power to discharge the employee. It is contended that even if a probationer is continued beyond the period of probation, he would not be entitled for any privileges that are available to a regular employee. It is also averred that there is no deemed confirmation and until a specific order
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 of confirmation is made, the employee would continue to be on probation. It is, therefore, contended that since the services of the employee were not confirmed on the expiry of the probationary period, she cannot contend that she has a right to continue in service.
12. It is also contended that the order of termination passed against the employee was not stigmatic and the employee, being only a probationer, had no indefeasible right to seek confirmation and was entirely within the discretion of the Management to either confirm her service or discharge her. It is also contended that the removal of the employee was not punitive in nature and it was only because her services were found to be unsatisfactory.
13. It is further contended that the order of the Tribunal was unsustainable, since the Tribunal did not allow parties to adduce evidence and therefore, the order was not sustainable.
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14. Learned counsel for the employee, on the other hand, contended that the employee cannot be considered as a probationer, in light of the fact that the service contract categorically stated that the period of probation would not, in any case, be extendable beyond two years. He contended that as a result of this clause in the service contract, the employee could be a probationer only for the first two years of service and thereafter, her employment would not be that of a probationer.
15. Learned counsel also submitted that the issuance of the letter dated 20.07.2017 leaves no room for doubt that the Management proposed to initiate disciplinary proceedings against the employee on specific charges and without holding an enquiry on the charges, the Management could not terminate the services of the employee on the ground that she was a probationer, and she was, hence, liable to be discharged.
16. It is also contended that a conjoint reading of a Memorandum dated 20.07.2017 and the earlier exchange
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 of e-mails between the employee and the Management would clearly establish that it had been the intention of the Management to somehow dispense with the services of the employee, and the issuance of order dated 04.09.2017 was only a ruse to get rid of the employee and therefore, the Tribunal was justified in holding that the termination was illegal.
17. It is also contended that the question of the Tribunal permitting to adduce evidence to prove the charges would not arise, since the Management had not discharged the services of the employee on the ground of misconduct. It is also contended that since the termination was on the premise that the employee was a probationer, the only question to be decided by the Tribunal was whether the discharge of the services of the employee was legal.
18. In light of the arguments advanced by both parties, the principal question which arises for consideration in the writ petition is:
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 Whether the Tribunal was justified in coming to the conclusion that the termination of the employee's service, by the order dated 04.09.2017, was bad in law?
19. As already stated above, the employee was appointed on 30.06.2014 and the order of appointment, as well as the service contract which was entered into on the same day, did specify that the employee would be on probation for a period of one year. The relevant clause in the service contract reads as follows:
"The party no.1 shall begin her employment in this institution on Third day of July two thousand and Fourteen. He or she shall be employed in the first instance on probation for a period of one year on purely temporary basis and shall be paid a monthly salary and allowances of Rs.5,20,608/-CTC in the scale of pay of Rs.________ Plus allowances in accordance with the rates as prescribed by the Management from time to time and applicable to his/her case. The period of probation may be extended by the governing council/principal for
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 a further period not exceeding one year, if your service is found not satisfactory. The total probationary period shall in no case exceed two years."
20. As could be seen from this clause in the service contract, it categorically states that the period of probation could be extended by the Governing Council or the Principal for a further period not exceeding one year, if the services of the employee were not satisfactory. More importantly, this clause relating to probation also specifically states that the total probationary period shall in no case exceed two years. This would clearly indicate that the employee could only be a probationer for a maximum period of two years. If the clause categorically stated that the probationary period would not exceed two years, it automatically follows that the period of probation comes to an end on the expiry of two years. As a further consequence, if the services of the employee are continued even beyond the period of two years, it is clear
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 that the said employee cannot be considered as a probationer.
21. It may also be kept in mind that Clause (2) of the service contract categorically states that if the work and conduct of the employee during the period of probation or extended period of probation was found to be unsatisfactory, the services of the employee was liable to be terminated. Admittedly, either during the initial period of one year of probation or the assumed extended period of probation of one more year, there is nothing on record to indicate that the services of the employee were, in any way, unsatisfactory and that her services were required to be terminated.
22. Clause (3) of the service contract categorically states that after the satisfactory completion of probationary period, the employee shall be confirmed with effect from the expiry of the said period of probation or the extended period of probation. This indicates that if the employee's services are not terminated within the period of one year
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 or the extended period of one more year, the services of the employee are mandatorily required to be confirmed. It, therefore, follows that there is no need for an express order of confirmation and mere continuation of the probationary period beyond the period of two years would lead to a situation where the services of the employee stood confirmed, with effect from the date of expiry of either the period of probation or the extended period of probation. In other words, on completion of two years as a probationer, the services of the employee, if continued, would indicate that she had been confirmed even though no specific order of confirmation is passed.
23. The language used in Clause (3) of the service contract leaves no room for doubt that the continuation of services of an employee beyond the period of two years results in an automatic confirmation, with effect from the expiry of the period of probation or the extended period of probation.
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24. Thus, since the employee was appointed on 30.06.2014, on the expiry of the maximum period of probation of two years, her services stood confirmed with effect from 30.06.2016. In light of this Clause of the service contract mentioned above, the argument of the learned counsel for the Management that unless an express order of confirmation is passed, the services of an employee would continue to be a probationer, is unsustainable.
25. Learned counsel for the Management sought to place reliance upon the following judgments:
a. G. Bijuna v. Union of India and Ors., W.P. No.62189/2016 (HCK-Bng), dt.28.09.2021;
b. Khazia Mohammed Muzammil v. the State of Karnataka and Ors., (2010) 8 SCC 155, dt.08.07.2010;
c. Chaitanya Prakash and Ors. v. H. Omkarappa,(2010) 2 SCC 623,dt.12.01.2010;
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 d. Vidyalakshmi Educational Society and Ors. v. Vijay and Ors., W.P. No. 65494/2009 (HCK-Dh), dt.16.03.2018;
e. Sowmya R. v. the Registrar General and Ors., W.A. No.1154/2023 (HCK-Bng), dt.21.09.2023;
f. Gramin Yuvak Vikas Shikshan Mandal Kinhi Nayak and Ors. v. Shivanarayan Dutta Raut and Ors., MANU/MH/1943/2023,dt.30.05.2023; and g. Sidagouda N. Patil v. Union of India, ILR 2014 KAR 1044, dt.23.07.2013.
On the strength of these judgments, it is contended by the learned Counsel for the Management that the employer has a right to discharge the services of an employee whose probationary period had not been declared as being successful and that an employer's services cannot automatically be deemed to be made permanent upon the completion of his probationary period.
26. In the cases of the Apex Court as well as of this Court relied upon by the learned counsel for the Management, the respective Courts were dealing with the
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 statutory rules which were not similar to the service contract found in the present case, which categorically declared that an employee, under no circumstances, can be considered as a probationer after two years. Therefore, reliance placed on the propositions of law propounded on the interpretation of a statutory rule, which is completely different from the contractual clause in the present case, would be of no relevance.
27. Learned counsel also relied upon the judgment rendered by a Co-ordinate Bench of this Court in W.P.Nos.65494-496/2009 to contend that the Tribunal was obligated to allow the parties to adduce evidence.
28. It is to be noticed here that in the case relied upon, the Court was considering a case where the Tribunal allowed the appeals of the employees and declared that removal of the employees was illegal and in that particular case, it was the specific contention of the Management that the documents produced by the employees were all fake, concocted and forged for the purpose of securing an
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 appointment. In context of the defence taken by the Management that the documents were fake, concocted and forged, this Court took the view that it was necessary for the Tribunal to permit the parties to adduce evidence regarding the veracity of the documents. However, in the present case, where the Management admits the order of termination and puts forth the contention that the employee was only a probationer and therefore, her services could be discharged without assigning any reason, the question of allowing either the Management or the employee to adduce evidence would not arise.
29. Learned counsel also sought to contend that the Management had raised the plea that the appeal itself was not maintainable, as the Institution was affiliated to the Central Board of Secondary Education ("the CBSE", for brevity) and the provisions of the Karnataka Education Act, 1983 ("the Act", for short), was inapplicable to it, and that this was also not considered by the Tribunal.
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30. As this is a pure question of law and it has already been held by decisions of the Division Bench of this Court in that the provisions of the Act would be applicable even to institutions to which the Act is exempted, this argument cannot be accepted.
31. However, since questions in this regard have been raised, it would be appropriate to consider them.
32. It cannot be in dispute that the provisions of the Act, barring a few provisions, have been made inapplicable to the institutions affiliated to the CBSE, but it will have to be examined whether that exemption would also extend to the resolution of disputes between a management and an employee.
33. In the year 1929, by way of a resolution, the Government of India established at Ajmer, "A Board of High School and Intermediate Education in Rajputana, Central India and Gwalior" to supervise and regulate examinations in those regions. In the year 1935, it was
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 registered as a Society under the Societies Registration Act of 1860. The name of the Society was then changed to the Central Board of Secondary Education, Ajmer.
34. Subsequently, in the year 1962, a revised constitution of the Board was adopted with the objects of conducting examinations at Secondary Stage or such other examinations subject to the control of the Controlling Authority (Government of India). The services of the Board could be availed by any educational institution in India or abroad and it was conferred with the powers to recognize such institutions for the purpose of its examinations.
"Objects: -(1) The Board shall conduct examinations at Secondary stage of education and such other examinations as it may consider fit, subject to the approval of the Controlling Authority to as it may be called upon to conduct by the Government of India in the Ministry of Education and do such Acts ancillary to the objects as may be necessary.
(2) The services of the Board may be availed of by any Educational institution in India or outside India,
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 which wishes to prepare candidates for the examinations conducted by the Board and the Board shall have the powers to recognise such Institutions for the purpose of its examinations (3) The Headquarters of the Board shall be shifted to Delhi, but the Board's Office at Ajmer shall continue for such time as it may be considered necessary by the Board.
(4) The Education Advisor of the Government of India shall continue to be the controlling authority of the Board.
(5) The re-constitution of the Central Board of Secondary Education shall take effect from the date notified in this behalf by the Controlling Authority and from that date the Chairman and members of existing Board shall cease to hold office."
35. The Board was conferred with the power to conduct examinations and grant certificates to persons who pursued education in an institution that had been admitted to the privileges of recognition by the Board and also to prescribe courses of instruction for the said examinations. The Board was also empowered to recognise institutions for the purpose of its examinations, but such recognition could not be accorded without the concurrence of the
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 State Government, if such institution was in receipt of regular maintenance grant-in-aid from the State Government.
"9. POWERS AND FUNCTIONS OF THE BOARD:-
The Board shall have the following powers: -
(i) To conduct examinations and grant diplomas/certificates to person who, after pursuing a course of study in an institution admitted to the privileges of recognition by the Board or having fulfilled such conditions as may be laid down by the Board, have passed the examination of the Board;
(ii) To prescribe courses of instruction for examinations conducted by the Board, provided that the Board may prescribe different courses of instruction for different classes of institutions;
(iii) To admit candidates to the examination conducted by it and prescribe that conditions for such examinations;
(iv) To recognise institutions for the purpose of its examinations provided that the Board shall not accord recognition to any institution, without the concurrence of the State Government concerned if such institution is in receipt of a regular maintenance grant-in-aid from the State Government;
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 Explanatory Note: It shall be within the powers of the Board to withdraw recognition if it is satisfied after inspection carried out under clause
(vi) that the standards of management and instruction in an institution justify withdrawal, provided that in case of a Government institution applying for recognition the recognition shall not be withheld, or in case the institution is already reconditioned the recognition shall not be withheld, or in case be withdrawn, without prior of approval of the Competent Authority;
(v) To demand and receive such fees as may be prescribed by the Regulations;
(vi) To cause an inspection to be made by such person or persons as the Board may nominate, of recognised institution or institutions applying for recognition;
(vii) To adopt measures to promote the physical and moral well-being of students of recognised institutions and supervise their residence, health and discipline;
(viii) To organize and provide lectures, demonstrations, educational exhibitions and take such other measures as are necessary to promote the standards of secondary education.
(ix) To institute and award scholarships, medals and prizes under conditions that may be prescribed and accept endowments for the same
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 subject to such conditions as the Board may deem fit.
(x) To make regulations for prescribing text- books or other books of study and to arrange for publication of such text-books.
(xi) To make regulations for imposing penalties for misconduct of students, teachers, examiners and examinees.
(xii) To prescribe qualifications for the appointment of teachers in the institutions recognised with the Board.
(xiii) To submit to Government of India its view on any matter with which it is concerned or which the Government of India or any State Government or educational organization may refer to it for its advice.
(xiv) To advise the Administrations of Union Territories as to the course of instruction and syllabi of middle school education with a view to securing coordination between middle school and secondary education.
(xv) To acquire properties, both movable and immovable and invest the surplus funds of the Board in Government securities or in bank approved by the Controlling Authority. (xvi) To do all such or other things as may be necessary in order to further the object of the Board as a body constituted for regulating and
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 maintaining the standards of secondary education."
36. Thus, essentially, the CBSE is a Society established by the Government of India with the objective of being a body to conduct examinations at the Secondary Stage and to recognise institutions for that purpose. It does not, therefore, have the force of a statute behind it.
37. The CBSE has framed the "Affiliation Bye-Laws-2018 of CBSE" (hereinafter referred to as "the Affiliation Bye- laws" or "the Bye-laws") which enumerates the manner in which affiliation could be granted to an educational institution. In order to get an affiliation, Bye-law 2.3.4 is required to submit formal prior Recognition Certificate from the State Education Department as per the extant rules and provisions contained under the RTE Act, 2009 and under Bye-law 2.3.5, the school would also be required to get a No Objection Certificate from the State Government for grant of affiliation.
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38. It is, therefore, obvious that since the State Government is required to necessarily grant prior recognition and secure an NOC from the respective State Government before the CBSE can grant its affiliation, the Education Act exempts the applicability of the Act to those institutions. It also follows from this that the exemption of the applicability of the Act would only relate to the aspect of grant of recognition and affiliation to the school. If the exemption was not provided, there would be a situation whereby recognition and approvals would have to be obtained from both the State Government and the CBSE.
39. Another important factor to be noticed here is Bye- law 2.3.3 relating to the School Management Committee which reads as follows:
"2.3.3 SCHOOL MANAGEMENT COMMITTEE Subject to relevant provision in the Education act/Rules of the appropriate government, every school should have a scheme of management. It should also have a School Management Committee as stipulated under RTE Act
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 2009 and as per provisions contained in these Byelaws."
40. As could be seen from the above, the Bye-law relating to the School Management Committee which is required to manage the school, mandates that the said Committee should be established, subject to the provisions of the State Act. This clearly indicates that the management of the School should be in compliance with the State law and this, therefore, makes the matter of administration of a School be subject to the provisions of the State Act.
41. Chapter 5 of the Bye-laws deals with the Staff of a school affiliated to the CBSE. Bye-law 5.2 lays down the guiding principles in respect of related activities to the staff recruitment. Clause 5.3, which would be important for this case, reads as follows:
"5.3 The school define the service rules of teaching & non-teaching staff on the lines of the service rules of the employees of Appropriate Government. The service rules
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shall be approved by the School
Management Committee and the
Trust/Society/company running the school and invariably have specific and well documented provisions in respect of the following:
5.3.1 Appointments 5.3.2 Medical Certificate, Character Certificate, etc. 5.3.3 Probation(including Extension of Probation) 5.3.4 Confirmation, etc."
42. As could be seen from the said Bye-law, it is mandated that the school should define the service rules of both teaching and non-teaching staff to be on the lines of the employees of the appropriate State Government. This, therefore, makes it clear that insofar as the service rules are concerned, the same should be in accordance with the service rules of the employees of the State, and thus, the conditions of service are to be essentially governed by the rules formed for State employees.
43. In light of the fact that the State Government has enacted a special Act relating to education and has therein
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 provided for the terms and conditions of service of employees of the Educational institutions and its enforcement, it is clear that the procedures prescribed under the Act would also govern the terms and conditions of service of an employee of a school affiliated to the CBSE.
44. Chapter 8 of the Bye Laws expressly states that "Subject to the relevant provision in the Education Act of the State/UT concerned, every affiliated school should have a scheme of management as per the following clauses." This, thereby, indicates that the management of the school, through a Committee, shall be subject to the provisions of the State Act, and thus, for the manner in which a school has to be run, it is the provisions of the State Act that would prevail and not the Bye-laws. Since, it is an undeniable fact that one of the most important factors in the management of a school is the relationship between the school management and its employees, along with the terms and conditions of the employment of such
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 employees, the provisions of the State Act relating to the terms and conditions of an employee of a school affiliated to the CBSE would still necessarily be governed by the provisions of the State Act, notwithstanding the exemption granted under Section 1 of the Act.
45. In this regard, it would also be necessary to take note of Bye-law 14.24 which is found in Chapter 14 which provides for General Rules and which reads as follows:
"14.24 The school shall be solely responsible for implementation and compliance of all the Central/State Acts, Local and Special laws applicable on the school along with rules/regulations framed, any other instructions issued there under and executive instructions."
46. As could be seen from the said Bye-law, the School is mandated to implement and comply with the Central/State Acts, and also the Local and Special laws that are applicable to the School. Since there are specific provisions enacted under the Education Act in the matter of governing the terms and conditions of service of
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 employees of the educational institutions, it is obvious that schools affiliated to the CBSE would still be subject to the provisions of the Act, in this regard.
47. It is, therefore, clear that in the matter of the terms and conditions of service and their enforcement, the provisions of the Act would have to prevail, not only because they have statutory force but also because the Bye-laws make it clear that the provisions of the State Act would be applicable.
48. In this regard, a Division Bench of this Court in D. Jeevagan1, has held that since the All India Council for Technical Education Regulations ("the AICTE Regulations", for short) do not provide for any statutory regulations to resolve disputes of the employees, such aggrieved employees of an institution affiliated to the AICTE would have a right to approach the Educational Appellate Tribunal.
1 D. Jeevagan v. the Principal, MEI Polytechnic and Ors., ILR 2007 Kar 4870.
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49. Thus, for the reasons stated above, employees of a school affiliated to the CBSE would also have the right to approach the Educational Appellate Tribunal, if any disciplinary action is taken against them.
50. Since the Tribunal has recorded a clear finding that the services of the employee being terminated without holding an enquiry was illegal, and the employee was, thus, required to be reinstated, no fault could be found with the order of the Tribunal. The Tribunal has taken into consideration the totality of circumstances and has merely ordered reinstatement of the employee, without awarding any backwages.
51. I am, therefore, of the view that there is no justification for entertaining the writ petition filed by the Management and the said petition is, therefore, dismissed.
52. As for the writ petition filed by the employee challenging the order dated 21.10.2022, by which one of
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 her representations has been treated as an appeal and has been dismissed, the Competent Authority was not justified in treating her representation as an appeal and coming to the conclusion that an appeal was maintainable only against the order passed under the provisions of the Act. The employee made certain allegations against the Management and sought intervention of the Competent Authority under the Act and the Rules to consider her grievances and take further action in the matter. However, in the instant case, the representation submitted by the employee has, itself, been considered as an appeal and this appeal has been rejected on the ground that there was no order passed by the Management, on the basis of which a further appeal could have been filed, which is completely incorrect.
53. The impugned order is, therefore, set aside and the Competent Authority is directed to consider the representations of the employee in accordance with law
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NC: 2023:KHC:44742 WP No. 24281 of 2022 C/W WP No. 23058 of 2021 and pass appropriate orders in the light of the observations made above and duly consider the same.
54. The writ petition of the employee is, accordingly, disposed of.
Sd/-
JUDGE PKS