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ALLAHABAD HIGH COURT
Yatindra Singh, Sunil Ambwani, D.P.Singh
M K GANDHI
Versus
DIRECTOR OF EDUCATION SECONDARY U P LUCKNOW
Decided On : 30 August 2005
C. M. W. P. No. 28103 of 2000
SCHOOLS - SERVICE RULES - BYE-LAWS - WRIT PETITION - MAINTAINABILITY - CENTRAL BOARD OF SECONDARY EDUCATION (CBSE) - STATE WITHIN ARTICLE 12 OF THE CONSTITUTION - AFFILIATION BYE-LAWS - STATUTORY FORCE - SERVICE RULES - ADOPTED AS SERVICE RULES - WRIT AGAINST THE SCHOOL - NOT MAINTAINABLE - WRIT AGAINST THE BOARD - MAINTAINABLE - DIRECTIONS.
Fact of the Case:
The petitioners were appointed as teachers in the Delhi Public School, Site No. 3, Meerut Road, Ghaziabad (the DPS School). The DPS School without conducting any inquiry or affording any opportunity to the petitioners terminated their services by separate but similar orders on 16-5-2000. The petitioners filed representations dated 6-6-2000 before the DPS School and the Board. When no action was taken on their representation, they filed the present writ petition.
Finding of the Court:
The DPS School is not the State within the meaning of Article 12 of the Constitution. The Central Board of Secondary Education, (the Board) is the State within the meaning of Article 12 of the Constitution. In case service conditions have not been framed, then : Chapter-VII of the affiliation bye-law relating to service condition shall be deemed to have been adopted by the School; and The agreement between the parties - unless any other format is prescribed by the State/ut Act - shall be deemed to be in the same format as Appendix-III to the affiliation bye-laws. The service rules and the agreement - whether framed by a school and agreed between the parties by an agreement or deemed to be adopted by them and agreement to be in the same format as Appendix-III of the affiliation bye-laws as held in this case - are merely private contract between the schools and the teachers. They do not have statutory force. The writ petition is not maintainable against the School to enforce them. In case any school does not follow the service rules framed by it or the bye-laws deemed to be adopted as held in this case then the school has to pay penalty for violating the same namely withdrawal of its affiliation. The Board is bound to follow its bye-laws and in case of any violation it has to take action under its bye-laws to disaffiliate the school. A writ petition is maintainable against the Board in case it fails to perform its duty. In the present case, there has been violation of the bye-laws - deemed to be adopted as service conditions - by the DPS School. The Board has failed to perform its duty by not taking any action on the complaint filed by the petitioners. The Board should take action under the affiliation bye-laws against the DPS School.
Issues: Whether the DPS School is a State within the meaning of Article 12 of the Constitution. Whether the Board is a State within the meaning of Article 12 of the Constitution of India. Whether the affiliation bye-laws have statutory force. In case the answer to the second question is in negative then, whether the Affiliation bye-laws are still binding on the schools affiliated to the Board. Whether the Committee of Management of the School, while dealing with the service matters of its employees or the teachers, is performing public duty. Whether a writ petition is maintainable again a privately managed school for violation of the service rules. Whether a writ petition is maintainable against the Board for non-observance of its bye-laws. Whether the petitioners are entitled to any relief.
Ratio Decidendi: The service rules and the agreement - whether framed by a school and agreed between the parties by an agreement or deemed to be adopted by them and agreement to be in the same format as Appendix-III of the affiliation bye-laws as held in this case - are merely private contract between the schools and the teachers. They do not have statutory force. The writ petition is not maintainable against the School to enforce them. In case any school does not follow the service rules framed by it or the bye-laws deemed to be adopted as held in this case then the school has to pay penalty for violating the same namely withdrawal of its affiliation. The Board is bound to follow its bye-laws and in case of any violation it has to take action under its bye-laws to disaffiliate the school. A writ petition is maintainable against the Board in case it fails to perform its duty.
Final Decision: The writ petition is partly allowed and the following directions are issued: Petitioners-1 to 3 (a) The Board may issue a show-cause notice to the DPS School to show-cause as to why it may not be disaffiliated for terminating the services of the petitioners-1 to 3 contrary to the bye-laws. (b) It may disaffiliate the DPS School unless the DPS School undertakes to conduct the inquiry in accordance with the affiliation bye-laws and pass appropriate orders afresh on the basis of the inquiry. (c) In case the DPS School undertakes to conduct the inquiry then the Board may : * give reasonable time (six months) to the DPS School for completing the inquiry; * extend the time, if the need be; * permit the DPS School to treat petitioners 1 to 3 under suspension from the date of termination of service till the completion of the inquiry. For Petitioner-4 : (d) The Board may issue notice to DPS School to show-cause whether the services of the petitioner-4 had been terminated for misconduct or for abolition of the post. In case the Board is prima facie satisfied that the service of petitioner-4 was terminated for abolition of the post, then it may not do anything further and leave the petitioner-4 to seek appropriate remedy before the Civil Court. In case the Board comes to a conclusion that the services of the petitioner-4 had been terminated for misconduct then it may proceed in the similar way as we have indicated in the case of petitioners-1 to 3.
This writ petition examines the scope and extent of protection available to the teachers teaching in the Schools affiliated to the Central Board of Secondary Education, (the Board ).
THE FACTS:
2. The petitioners were appointed as teachers in the Delhi Public School, Site No. 3, Meerut Road, Ghaziabad (the DPS School ). The details regarding their appointment and confirmation are as follows:
(a) The petitioner-1 was appointed for 89 days as a post graduate teacher in Physics on 13-7-1987. Subsequently, he was appointed as a trained graduate teacher on probation for one year on 29-3-1988. There is no date regarding his confirmation but it is alleged in paragraph 15 of the writ petition that he was confirmed. This allegation is not specifically denied in the counter-affidavit and we hold that he was a confirmed teacher. Later on, he was promoted as a post graduate teacher in Physics on 30th June, 1990.
(b) The petitioner-2 was appointed as a Post Graduate Teacher in Commerce on 7-3-1987 on probation of one year. His services were confirmed on 5-4-1988 with effect from 1-4-1988.
(c) The petitioner-3 was appointed as a Trained Graduate Teacher on probation of one year on 29-3- 1988. His services were confirmed on 1-9-1989 with effect from 8-7-1989. Later on he was promoted as a post graduate teacher in Mathematics on 30th June, 1990.
(d) The petitioner-4 was appointed as a Physical Education Teacher on probation for one year on 1-7- 1991. In paragraph 22 of the writ petition, it is alleged that the petitioner-4 had successfully completed his period of probation and was confirmed. This allegation is not specifically denied in the counter- affidavit and we hold that he was a confirmed teacher.
3. The DPS School without conducting any inquiry or affording any opportunity to the petitioners terminated their services by separate but similar orders on 16-5-2000. The petitioners filed representations dated 6-6-2000 before the DPS School and the Board. When no action was taken on their representation, they filed the present writ petition. The Board has filed supplementary counter- affidavit indicating that the secretary of the Board has sought explanation from the DPS School in this regard and the principal in his explanation has submitted that:
* The services of the petitioners have been dispensed with in accordance with terms of their appointment.
* They have been given three months salary in lieu of the notice.
* The management has not acted in mala fide manner.
* The case of the petitioners is pending before this Court and further proceeding of the case will be intimated to the Board.
The Counsel for the Board has informed us that no further action has been taken due to the pendency of the writ petition.
4. This case came up for hearing before a single Judge. He noted the difference of opinion between the two Division Bench judgments of our Court (see Endnote-1) and referred the case to the larger Bench to resolve the difference.
5. The case was listed before us earlier and we, after hearing the Counsel for the parties, framed some specific points. There wasnt specific pleadings regarding these points and we granted time to the parties to file affidavits. The Counsel were required to serve copies of affidavits on each other so that, if the need be, they may be replied. The affidavits were exchanged and when the case was taken up next, we thought appropriate that the Union Government should also clarify its stand. The Union of India was also impleaded as a party and was granted time to clarify its stand. The required affidavit was filed by the Union of India. The Board was again granted time to file affidavit clarifying some points; this affidavit has also come on the record.
POINTS FOR DETERMINATIOn
6. We have heard Counsel for the parties. The following points arise for determination in this case:
(i) Whether the DPS School is a State within the meaning of Article 12 of the Constitution.
(ii) Whether the Board is a State
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