Kerala High Court
Mrs.Sophiamma.V.V. Teacher vs The Council For The Indian School on 31 October, 2007
Author: A.K.Basheer
Bench: A.K.Basheer
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 10754 of 2007(E)
1. MRS.SOPHIAMMA.V.V. TEACHER,
... Petitioner
Vs
1. THE COUNCIL FOR THE INDIAN SCHOOL
... Respondent
2. ST.JOHN'S EDUCATIONAL TRUST,
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.RAJESH THOMAS
The Hon'ble MR. Justice A.K.BASHEER
Dated :31/10/2007
O R D E R
A.K. Basheer, J.
- - - - - - - - - - - - - - - - - - - - - - - - -
W.P(C) No.10754 of 2007
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 31st day of October, 2007.
J U D G M E N T
Petitioner is a teacher working in the unaided school being run by St.John's Educational Trust at Kayamkulam. She prays for issue of a writ of certiorari to quash Ext.P5 communication issued by the management informing her that she would be retired from service on the closing day of the school for summer vacation in March 2007. She further prays for a direction to the Council for the Indian School Certificate Examination, New Delhi (for short, the Council) to "withdraw the affiliation" granted by it to the school.
2. It is contended by the petitioner that she is entitled to continue in service till she attains the age of 58 in terms of the clauses contained in the School Service Manual governing the staff of the institution. Since she has completed only 55 years, the action of the management in asking her to retire from service as directed in Ext.P5 is totally illegal, arbitrary and without jurisdiction. It is the further case of the petitioner that the Council is liable to withdraw affiliation to the school since the action of the management is in gross violation of Ext.P1 Manual as well as Ext.P2 guidelines for affiliation . Are the above contentions tenable?
3. In the counter affidavit filed by the management it is contended that Ext.P1 is only "a guideline prepared by the ISC 10754/07 2 Council" with an option to the institution to adopt the same. Referring to some of the clauses in Ext.P1 Manual, it is contended that the management is empowered to frame rules for the smooth conduct of the school as is evident from the option given to the management to amend or interpret the rules. It is further pointed out that the management is also at liberty to fall in line with the local Acts, Rules, Regulations etc. prevailing in a particular State. Even assuming that the Manual is adopted by the management, it has wide powers of amendment as provided in Rule 41. In short, the contention of the management is that petitioner cannot, as of right, insist that she should be allowed to continue in service till she attains the age of 58 years even though clause 13 of Ext.P1 guidelines stipulates the retirement age as 58 . But the primary contention raised by the management is that the school in question being an unaided private educational institution, the petitioner is not entitled to invoke the discretionary power of this Court under Article 226 of the Constitution of India,.
4. Since the question of maintainability of the writ petition has been raised as a preliminary issue, I am of the view that the said question has to be addressed at the threshold itself, since consideration of the merit of the other contentions based on the service manual and guidelines for affiliation etc. would be dependent on the answer to the primary question of maintainability itself.
5. It is contended by the learned counsel for the petitioner that 10754/07 3 the school having been affiliated to the Council which is discharging a public duty, will definitely fall within the ambit of Article 12 of the Constitution. The Council, though a Society registered under the Societies Registration Act 1860, is definitely a body which satisfies the definition of a public authority, as defined under Article 12, since it is established for the purpose of imparting education which has been recognised as a public duty. Therefore the school which is affiliated to the said Society cannot take up a defence that it is not amenable to the writ jurisdiction of this Court under Article 226.
6. Per contra, it is contended by the management that the school is not receiving any aid or grant from the Government. It is an unaided private educational institution over which neither the Government nor the Department of Education does have any kind of supervisory or administrative control. It is true that the school has got affiliated to the Council. The school follows the syllabus and curriculum prescribed by the Council. It is also true that the school is bound to follow the guidelines contained in Ext.P2 prescribed by the Council. Similarly the clauses contained in the Service Manual (Ext.P1) are also binding on the management subject to the local laws. The management has been given discretionary power in certain matters as enumerated in Ext.P1 which would enable it to regulate the service conditions of the teaching and non-teaching staff in conformity with the service norms of the State Government. The specific contention of the management is that 10754/07 4 the institution being an unaided school, the petitioner is not entitled to seek intervention of this Court under Article 226 of the Constitution. Undoubtedly the reliefs sought for will fall within the jurisdiction of a competent civil court, it is contended.
7. As has been noticed already, the issue involved in this writ petition falls in a very narrow compass. It is contended by the petitioner that she is entitled to continue in service till she attains the age of 58 as provided under clause 13 of Ext.P1 Manual which stipulates that all employees shall retire from service on attaining the age of 58 years. It is pertinent to note that the same clause empowers the school to grant extension to any employee beyond the age of 58 years depending upon the health and performance of the employee on such terms and conditions as may be decided by the management. It is contended by the petitioner that the consistent practice of the management of the school had been that all employees were allowed to continue till the attainment of 58 years. It is asserted by the petitioner that to her knowledge there has not been a single instance of any teacher having been sent out of service prior to the completion of the age of retirement indicated in clause 13.
8. Petitioner was born on August 21, 1951 and she completed 55 years in August 2006. But obviously, she was allowed to continue till the end of the academic year on March 31, 2007 in consonance with the provisions contained in the Kerala Education Rules. The management 10754/07 5 had therefore issued Ext.P5 communication dated March 15, 2007 informing the petitioner that she would have to retire from service on the closing date of the school for summer vacation in March 2007. It is contended by the management that the above decision of the management is in conformity with the decision of the Government fixing the age of retirement of the teachers in the Government and aided schools in the State on attainment of 55 years. Management seeks to draw support from Rule 41 of Ext.P1 Service Manual which inter alia stipulates that the " the school may amend, modify, subtract or add to these Rules, through Resolutions / office orders / circulars from time to time and all such amendments, modifications or additions shall take effect from the date as stated therein and shall be binding on all employees." The management had taken note of the fact that petitioner's health was not satisfactory enough. She had informed the management that she had been suffering from cancer and undergoing treatment. She had not been able to manage the workload effectively. According to the management, this is one reason which will dis entitle the petitioner to insist that she should be allowed to continue in the school for 3 more years. It is further asserted by the management that the school had adopted 55 as the age of retirement in modification of clause 13, while invoking the power under Rule 41 of Ext.P1 Service Manual.
9. Learned counsel for the petitioner has relied on a few 10754/07 6 decisions in support of the contention that this is a fit case in which this Court can invoke the jurisdiction under Article 226. According to the learned counsel, there is gross violation of the clauses contained in the Service Manual. He submits that the school is discharging a public duty to the society at large and therefore Article 12 is attracted. It may be true that the school is not receiving any grant from the Government; but still this Court can reach out wherever there is injustice or violation of law. Learned counsel invites my attention to a decision of their Lordships of the Supreme Court in Shri Anadi Mukta Sadguru SMVSJMS Trust v. V.R. Rudani (AIR 1989 SC 1607) and contends that the school having been affiliated to the Council, it cannot be contended by the management that it is not an authority coming under Article 12 of the Constitution.
10. The question that came up for consideration before the Apex Court in the above case was whether the academic staff working in the college under the Trust could enforce the award of the Chancellor granting certain benefits like arrears of pay, allowances etc. It was noticed by the Supreme Court that the teachers were claiming the terminal benefits and arrears of salary payable to them and that the appellant-Trust was trying to side-track the issue and needlessly delaying the legitimate payments due to the teachers. Their Lordships held that the "term "authority" used in Article 226 must receive liberal meaning unlike the term in Article 12. It was further held that the 10754/07 7 words "any person or authority" used in Article 226 are therefore not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty.
11. Specific reference has also been made by the learned counsel to the decision of the Supreme Court in Binny Limited v. Sadasivan reported in 2005 (4) KLT 315 (SC) and also in K.Krishnamacharyulu and Ors. v. Sri Venkateswara Hindu College of Engineering and Anr. (AIR 1998 SC 295).
12. In Sadasivan's case (supra), the Supreme court after surveying the judicial precedents and various other authors of eminence held that a writ of mandamus can be issued against a private body which is not "State" within the meaning of Article 12 of the Constitution, if there is a public law element. But still, their Lordships laid down that the High Court cannot exercise judicial review of the action challenged by a party under Article 226 to enforce private contracts entered into between the parties. While noticing that the Government or other authorities under them are increasingly employing contractual techniques at all levels to achieve their regulatory aims, the Supreme Court nevertheless took the view that the exercise of those powers is not free from the zone of judicial review and that there would be no limits to the exercise of such powers. But the court cautioned that in normal circumstances "judicial review 10754/07 8 principles cannot be used to enforce contractual obligations". The court further went on to add thus :
"When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably"
While reversing the judgment of the High Court, the Supreme Court found that the decision of the employer to terminate the service of their employees in the two cases could not be said to have had any element of public policy since their cases were governed by the contract of employment entered into between employees and the employer. It was further observed that it was not appropriate to construe the contract as opposed to the principles of public policy and thus void and illegal under Section 23 of the Contract act. Their Lordships concluded that in contractual matters even in respect of public body, principles of judicial review have got limited application, relying on the decisions of the Apex Court in State of Uttar Pradesh v. Bridge & Roof Co. ( India) Ltd.(1996 (6) SCC 22 and Kerala State Electricity Board v. Kurien E. Kalathil ((2000)6 SCC 293).
13. It is true that in Krishnamacharyulu (supra), the Supreme 10754/07 9 Court has held that the private educational institutions do cater to the needs of the public and that the teacher duly appointed to a post in a private institution also is entitled to seek enforcement of the orders issued by the Government. Learned counsel for the petitioner has laid heavy emphasis on this judgment in the course of his argument.
14. But it may be noticed that the reliefs sought for in this writ petition is not in respect of denial of any benefit that was sanctioned by the Government to other similarly placed teachers. The facts revealed from the case on hand would undoubtedly show that petitioner wanted to enforce a clause in the service manual governing the teaching staff in the institution affiliated to the Council. In my view the above claim will not fall in the ambit of "a public element issue" as enunciated by the Apex Court in Sadasivan's case (supra).
15. It is undoubtedly true that the school is imparting education to small children. In that perspective it could be said that the management is discharging a public duty; but still there is no public element in the dispute that has now cropped up vis-a-vis the management and the teacher. If the petitioner seeks to enforce any clause in the Manual, she has to necessarily approach the competent civil court for the same. As noticed already, the school does not come within the purview of the Kerala Education Act and Rules. The institution does not receive any grant or aid from the Government. It cannot also be said that the Government or the Department of 10754/07 10 Education has got any administrative or supervisory control over the school. Therefore the decision of this Court in 2003 (3) KLT 1090 on which heavy reliance has been placed by the learned counsel will also not come to the rescue of the petitioner.
16. Having regard to the peculiar facts and circumstances available on record I am satisfied that the discretionary jurisdiction vested in this Court under Article 226 of the Constitution need not be exercised in this case. On a perusal of the Service Manual (Ext.P1) and particularly the Guidelines for Affiliation (Ext.P2), I have no hesitation to hold that petitioner cannot seek to enforce her rights, if any, through the intervention of this Court under Article 226 of the Constitution.
17. Writ Petition fails. It is accordingly dismissed. However having regard to the fact that petitioner is undergoing treatment for cancer it will only be highly appropriate and just if the management disburses the entire retiral benefits to her at the earliest, at any rate within one month from the date of receipt of a copy of this judgment.
A.K. Basheer Judge.
an.
10754/07 11