Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
V. CHITAMBARESH, R. NARAYANA PISHARADI, JJ.
Sommy Kunjappan & Ors. - Petitioners
Versus
Central Board of Secondary Education & Ors. - Respondents
WP(C).No. 40144 of 2016, 11920 of 2018
Decided On : 28-02-2019
Statement of facts :
The school affiliated to CBSE does not require recognition from the State Government under the Kerala Education Act, 1958-Such a school requires recognition from the State Government under Section 18 of the R.C.E. Act read with Rule 14 of the R.C.E. There is no serious dispute that the school affiliated to CBSE imparting elementary education under the R.C.E. Act is an 'authority' amenable to the writ jurisdiction of this Court. 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 a statutory body-The school is affiliated to CBSE for the sake of convenience mainly for the purpose of recognition of the courses of study and the provisions of the R.C.E. Act and R.C.E. Rules apply to the same just like any other school. Section 21 of the R.C.E. 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 R.C.E. Act and such other functions as may be prescribed by the R.C.E. Rules. Section 24 of the R.C.E. Act enumerates the duties of a teacher who shall be liable to disciplinary action under the service rules on default committed in performance of his duties. Section 38 of the R.C.E. 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 R.C.E. Rules provides for the Grievance Redressal of Teachers where under 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. Therefore there is no statutory provision either in the R.C.E. Act or in the R.C.E. Rules relating to disciplinary action the infraction of which alone can clothe the writ court with jurisdiction.
Finding of the court :
A writ petition for enforcing contract of personal service is not maintainable against the school discharging a public duty. We overrule the decisions in Bincy Raj and others v. CBSE and others [2015 KHC 3683] and Chithra v. State of Kerala and others [2017 (3) KHC 687] to the extent they hold otherwise-Disciplinary action can be challenged in writ proceedings have been rendered without noticing the proviso to Rule 19(2) of the R.C.E. Rules.
Bincy Raj and others v. CBSE and others [2015 KHC 3683] and Chithra v. State of Kerala and others [2017 (3) KHC 687] are overruled
Result : Post the writ petitions for hearing as per roster.
CHITAMBARESH, J.
“Whether the disciplinary action initiated by the management against the erring teachers in a school affiliated to the Central Board of Secondary Education can be called in question by them in proceedings under Article 226 of the Constitution of India?”
The above is the question referred to us for resolution in view of the conflict between various decisions of this Court with specific reference to the schools affiliated to the Central Board of Secondary Education. The maintainability of a writ petition against an 'authority' not coming within Article 12 of the Constitution of India nevertheless discharging public function is however no more res integra.
2. The following abbreviations are used:
i. Central Board of Secondary Education = CBSE.
ii. The Right of Children to Free and Compulsory Education Act, 2009 = R.C.E. Act.
iii. The Kerala Right of Children to Free and Compulsory Education Rules, 2011 = R.C.E. Rules.
3. We heard Mr. P. Ramakrishnan, Advocate and Ms.Surya Binoy, Advocate for the petitioners, Mr. Liji J. Vadakedom, Advocate and Smt. Parvathy Kottol, Advocate for the managements, Mr. Nirmal S., Advocate for CBSE as well as Mr.V.A.Muhammed, Advocate as amicus curiae.
4. We have already held by order dated 21.2.2019 in WP(C).Nos.17398 and 21369 of 2017 that the school affiliated to CBSE does not require recognition from the State Government under the Kerala Education Act, 1958. But such a school requires recognition from the State Government under Section 18 of the R.C.E. Act read with Rule 14 of the R.C.E. Rules on application made. There is no serious dispute that the school affiliated to CBSE imparting elementary education under the R.C.E. Act is an 'authority' amenable to the writ jurisdiction of this Court. But how far the writ jurisdiction under Article 226 of the Constitution of India can be exercised in relation to the disciplinary action initiated against the erring teachers is the question subsisting.
5. We may at the outset state 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 a statutory body. The distinction between a body created by the statute and a body governed in accordance with a statute is explained in Executive Committee of Vaish Degree College v. Lakshmi Narain[(1976) 2 SCC 58] as follows:
“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 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.”
The school is affiliated to CBSE for the sake of convenience mainly for the purpose of recognition of the courses of study and the provisions of the R.C.E. Act and R.C.E. Rules apply to the same just like any other school.
6. Section 21 of the R.C.E. 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 R.C.E. Act and such other functions as may be prescribed by the R.C.E. Rules. Section 24 of the R.C.E. Act enumerates the duties of a teacher who shall be liable to disciplinary action under the service rules on default committed in performance of his duties. Section 38 of the R.C.E. Act empowers the State Government t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
