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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B.SURESH KUMAR, C.S. SUDHA, JJ.
Sindhu S., W/o. Arun V.R. – Appellant
Versus
Raja Ravi Varma Central School – Respondent
W.P.(C)Nos.8036 of 2020 and 5925 of 2021
Decided on : 11-08-2022
Constitution of India, 1950 - Article 226, 12 - Right of Children to Free and Compulsory Education Act, 2009 - Section 18, 18, 18(3), 19, 21, 24(3), 21, 24 and 38 - Right of Children to Free and Compulsory Education Rules, 2010 - Rule 14, 16 - Minimum Wages Act, 1948 - Section 3(1), 5, 5(1), 5(2) – State - Duties of teachers and redressal of grievances - Withdrawal of recognition to schools - Salary and allowance Payable - qualifications for appointment and terms and conditions of service of teachers - Norms and standards for school says that, no school shall be established, or Recognized - Appropriate Government may, by notification, make rules, for carrying out the provision of this Act - Even if writ petition would be maintainable against an authority, which is 'State' under Art.12 of the Constitution, before issuing any writ, particularly writ of mandamus, this 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. (Para 27).
Findings of the Court :
Government has not prescribed Rules relating to salary and conditions of service of teachers or staff of aided schools as provided under Bye-laws. 5th respondent contends that they are paying salary as per Ext.R-5(C) and R-5(D) Government orders, which have been issued by Government under relevant provisions of Minimum Wages Act, 1948. Ext.R-5(C) Government order says that in exercise of powers conferred by Clause (a) of Sub- section (1) of Section 5 of Minimum Wages Act, 1948 read with Sub-section (2) of Section 5 thereof, Government of Kerala has prescribed rates of wages to employees employed in private educational institutions (non-teaching) in State of Kerala specified in schedule annexed to same and says that from date of publication of notification, rates of pay shall come into force.Ext.R-5(D) says that State Government in exercise of powers conferred by Clause (c) of Sub-section (1) of Section 3 of Minimum Wages Act 1948 read with Sub-section (2) of Section 5 thereof is revising minimum rates of wages payable to employees employed in private educational institutions (non-teaching) industry sector in State of Kerala as specified in Schedule annexed thereto.
Result: Dismissed.
JUDGMENT :
C.S.Sudha, J.
W.P.(C)No.8036/2020 is before us based on a Reference Order dated 18/09/2020 of a learned Single Judge of this Court. The writ petition was filed by the petitioner, a teacher of the first respondent School, namely, Raja Ravi Varma Central School, Kilimanoor, Thiruvananthapuram (the School), challenging Ext.P3 order of suspension issued by the second respondent, namely, the Principal of the School. According to the petitioner, Ext.P3 suspension order is bad as it is based on a cooked-up allegation; that it has been issued by the second respondent in malafide exercise of power; that the principles of natural justice have not been complied with before issuing Ext.P3 order and that the school authorities are not finalizing the proceedings without assigning any cogent reasons. The petitioner is also aggrieved by the inaction on the part of the third and the fourth respondents, namely, the Central Board of Secondary Education (CBSE) for their failure to take action against the school for contravening the provisions of the CBSE Affiliation Bye-laws, 2018 (the Bye-laws), which action they are bound to take.
2. Respondents 3 and 4, namely, the CBSE, has filed a statement contending that disciplinary action initiated by the management against erring teachers in a School affiliated to the CBSE cannot be called in question by them in a proceeding under Article 226 of the Constitution of India, which position has been answered by this Court in the decision in Sommy Kunjappan v. Central Board of Secondary Education, 2019(1) KLT 864. As per the Bye-laws, every teacher and staff, for redressal of their grievance relating to service conditions, pay etc. is to approach the School Management Committee (SMC) of the respective School. The CBSE is an affiliating Body and is not an appellate authority for any disciplinary proceedings initiated against the employees of the school, contend the respondents.
3. The learned Single Judge noticed the Division Bench decision in Sommy Kunjappan (Supra). However, according to the learned Judge, the question whether a writ against non-consideration of a representation submitted by a teacher before a SMC would be maintainable and whether the CBSE can be directed by this Court to enforce the provisions contained in the Bye-laws, have not been considered in the judgment. The learned Single Judge was of the view that the aforesaid questions need to be answered by a Division Bench. Hence the Registry was directed to place the matter before the learned Chief Justice for orders. Thus, the reference.
4. As far as W.P.(C)No.5925/2021 is concerned, similar connected issues are involved.
5. Heard the learned counsel for either side; the learned Standing Counsel for the CBSE and the learned Senior Government Pleader.
6. Before we venture to answer the reference and decide the writ petitions, we briefly refer to the law on the point. The power of judicial review by the High Courts emanate from Article 226 of the Constitution of India. Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also approach the court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. (Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044 and Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161).
7. Therefore, existence of a legal right is the foundation of the exercise of jurisdiction of the Court under Article 226. The legal right that can be enforced under this Article is ordinarily the personal or individual right of the petitioner himself, though in the case of writs like habea
If a person or authority is a 'State' within the meaning of Art.12 of the Constitution, admittedly a writ petition under Art.226 would lie against such a person or body.
Writ jurisdiction cannot be invoked to challenge disciplinary actions in private law contexts, but the CBSE must act on violations of its Bye-laws, which possess statutory force.
The enforcement of service conditions in private unaided schools affiliated with CBSE is governed by contractual obligations, and disputes arising from such conditions do not invoke public law elemen....
The main legal point established in the judgment is that the petitioner, as an employee of a school with a public element in imparting education, was entitled to avail the remedy under Article 226 of....
A writ petition under Article 226 of the Constitution of India is not maintainable against a private unaided minority educational institution. A service dispute in the private realm involving a priva....
The main legal point established in the judgment is that a service dispute involving a private educational institution and its employee is not amenable to challenge under Article 226 of the Constitut....
The Army Welfare Education Society is not a 'State' under Article 12, and the doctrine of legitimate expectation does not apply to private employment disputes.
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