A.P. John Paulraj vs Central Board of Secondary Education

P.D. Dinakaran, J.—Heard both the parties.

For the purpose of convenience, the parties are referred to as per their rank in the Writ Appeal.

The above Writ Appeal is directed against the order dated 2.3.1990 made in Writ Petition No. 8227 of 1988 filed by the Appellant herein,

wherein, a learned single Judge, on a preliminary objection held that no writ will lie against third Respondent/Unaided Private School, which is

affiliated to the first Respondent and thus dismissed the Writ Petition without going into the merits of the case.

The brief facets of the case are stated as follows:

According to the Appellant, he was appointed as a Principal in the third Respondent school on 11.8.1986 on temporary basis, considering his 12

years'' experience as teacher; he was very sincere in discharging his duties; he was working without any blame or blemish on his part; and his

service was extended for one year from 1.6.1987 till the end of the academic year by an agreement dated 1.8.1987. However, the Appellant

complains that on 16.5.1988, the Chairman of the third Respondent Management directed the Appellant to supervise the whitewashing of the

school and the Appellant expressed his inability to supervise the work. Thereafter, when the Appellant went to school on 10.6.1988, he was

threatened by the Chairman that he would be thrown out if he entered the school. Subsequently, the Appellant was served with an order of

termination dated 13.6.1988, as a disciplinary action for certain alleged irregularities. Aggrived by which, the Appellant has filed the above Writ

Petition for issue of a Writ of Certiorari calling for the records relating to the said termination order dated 13.6.1988 and to quash the same on the

grounds that the impugned order is arbitrary, malafide, unreasonable and violative of Principles of Natural Justice.

The third Respondent filed a detailed counter affidavit, of course denying the allegations levelled against the Chairman of the third Respondent

Management and substantiating the irregularities mentioned in the impugned termination order dated 13.6.1988 and contending that the very Writ

Petition is not maintainable in law against the third Respondent which is an Unaided Private School, as the same is not coming within the ambit of

Article 12 of Constitution of India.

In reply, the Appellant contends that the third Respondent school being affiliated to the first and second Respondent herein, is discharging public

duty of imparting education and therefore the Appellant is entitled to seek relief against the impugned order of termination dated 13.6.1988

invoking Article 226 of Constitution of India. The Appellant further contends that Clause 17(VIII) of Chapter V of the By-laws regarding the

affiliation of Central Board of Secondary Education, enables the 1st and 2nd Respondents to withdraw the very affiliation for the absence of

approved terms and conditions of service, or frequent dismissal of teacher from service and therefore, the Appellant contends that he is entitled to

invoke Article 226 of Constitution of India to challenge the impugned order of termination dated 13.6.1988.

The learned single Judge by his order dated 2.3.1990 without going into the merits of the case, considered the preliminary objection raised by

the third Respondent and held that the third Respondent/Unaided Private School is neither a State nor an instrumentality of the State within the

ambit of Article 12 of Constitution of India; therefore the Appellant is not entitled to maintain the above Writ Petition and thus dismissed the same.

Aggrieved by the said order of the learned Single Judge, dated 2.3.1990 the Appellant has filed the above Writ Appeal.

Mr. G. Rajan, learned Counsel for the Appellant vehemently argues that the decision of the learned single Judge dismissing the Writ Petition as

not maintainable as impugned order dated 13.6.1988 was passed by the third Respondent/Unaided Private School is illegal and contrary to the

decision laid down by the Apex Court in Unni Krishnan, J.P. v. State of Andhra Pradesh reported in AIR 1993 SC 2179.

The learned Counsel for the Appellant further contends that availing grant or aid from the Government cannot be itself be a deciding factor for

holding that the Writ Petition is not maintainable against the third Respondent Unaided Private Educational Institution in as much as the third

Respondent is affiliated to the first and second Respondent to achieve the object of dicharging public duty of imparting education to the students at

large envisaged as a Directive Principle of State Policy under Article 41 of Constitution of India.

The learned Counsel for Appellant, on merits of the case, contends that the impugned order of termination dated 13.6.1988 is illegal as the

same is arbitrary, unreasonable, malafide and violative of Principles of Natural Justice, apparent on the face of the records.

Per contra, Mr. R. Gandhi, learned Senior Counsel for the third Respondent forcibly contends that the decision of the learned single Judge

dismissing the Writ Petition as not maintainable against the Unaided Private School still holds good even in the light of Unni Krishnan, J.P. v. State

of Andhra Pradesh reported in AIR 1993 SC 2179. Mr. R. Gandhi, learned senior counsel further contends that there is no change in the

proposition of law laid down in the decisions referred by the learned Single Judge holding that the non-aided Private Educational Institution do not

come within the definition instrumentality of State and therefore Writ Petition against the same is not maintainable invoking Article 226 of

Constitution of India to enforce the terms of contract of his personal service entered with the third Respondent private school.

Mr. R. Gandhi, learned senior counsel also further contends that the Appellant was not a permanent employee of the third Respondent school

and therefore, in the absence of confirmation of his service, there cannot be any objection to terminate the Appellant from his service even without

assigning any reason.

We have bestowed our anxious consideration to the arguments of both sides.

The pertinent issues that arise for our consideration in this Writ Appeal are;

Issue No. 1: Whether the Writ Petition under Article 226 is maintainable against an Unaided Private Educational Institution, by an employee of the

said institution to enforce the terms of contract of personal service entered between them?

Issue No. 2: If a Writ Petition is maintainable, to what relief the Appellant is entitled to under the facts and circumstances of the case?

The learned Single Judge has elaborately dealt with case laws on the issue namely,

Whether a Writ Petition under Article 226 of Constitution of India is maintainable against Unaided Private Educational Institution, by employee of

the said institution to enforce the terms of contract of his personal service entered between them?

We therefore do not propose to discuss the said decisions again, namely;-

(1) Vaish Degree College v. Lakshmi Narain reported in AIR 1976 SC 888,

(2) Ramana Dayaram Shetty Vs. International Airport Authority of India and Others,

(3) Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, ,

(4) Smt. J. Tiwari Vs. Smt. Jwala Devi Vidya Mandir and Others, ,

(5) Dipak Kumar Biswas Vs. Director of Public Instruction and Others, ,

(6) Tekraj Vasandi alias K.L. Basandhi Vs. Union of India (UOI) and Others, ,

(7) R. Thamilarasan Etc. v. The Director of Handlooms and Textiles, Madras reported in 1989 1 LLJ 588,

(8) C. Marianandam v. The Government of Tamil Nadu reported in 1988 TLNJ 350,

(9) S. Sivanarual v. The State of Tamil Nadu reported in 1985 1 MLJ 456,

(10) Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, ,

(11) Harijander Singh Vs. Selection Committee, Kakatiya Medical College, Warrangal and Another, ,

(12) T. Gattaiah v. Commissioner of Labour reported in 58 FLT 327 and

(13) Ambika Prasad Mohanty and etc. Vs. Orissa Engineering College and Another, etc., .

Then, what remains is to decide whether the decision the learned single Judge arrived in the light of those case laws stands to the test of

reasons that are weighed in the subsequent decisions of the Apex Court.

Mr. G. Rajan, learned Counsel for the Appellant contends that the Appellant is entitled to invoke Article 226 of Constitution of India as his

right to discharge public duty of imparting education envisaged in Directive Principles of State Policy under Article 41 of Constitution of India is

sought to be interfered by the impugned proceedings of the third Respondent and therefore the same is arbitrary, unreasonable, malafide and

violative of the Principles of Natural Justice, deserves our deep consideration. Mr. G. Rajan relies on certain passages referred in Unni Krishnan,

J.P. v. State of Andhra Pradesh reported in AIR 1993 SC 2179;

The fact that these institutions perform an important public function coupled with the fact that their activity is closely intertwined with governmental

activity, characterises their action as ''State action''. At the minimum, the requirement would be to act fairly in the matter of admission of students

and probably in the Matter of Recruitment and Treatment of its Employees as well.

The Private Educational Institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent

activity. It is an activity supplemental to the principal activity carried on by the State.

On the other hand, Mr. R. Gandhi, learned senior counsel for the third Respondent placing reliance on the very same case viz., Unni Krishnan,

J.P. v. State of Andhra Pradesh reported in AIR 1993 SC 2179, contends that the claim of the Appellant in the instant case being one purely

based on his contract of personal service, the question of discharging public duty does not arise, and therefore, the above Writ Petition is not

maintainable under Article 226 of the Constitution of India. Mr. R. Gandhi relies on certain other passages in the said Unni Krishnan case;

...we find it impossible to hold that a Private Educational Institution either by recognition or affiliation to the University could ever be called an

instrumentality of State.

In this regard, it is relevant to refer the following Clauses of the Contract of Service entered between the Petitioner and the third

Respondent/unaided school;

Unless the service of the Party No. 1 is terminated as hereinafter provided, he shall continue in the employment of the school till he attains the

age of superannuation as per State Government rules, when he shall retire, provided that the committee of any other person authorised by the

committee in this behalf may retain his service for a further period as admissible according to rules of the State Education Dept. for such extensions

if the Party No. 1 is fit for such extension and has no mental or physical incapacity which would disentitle him to get such extension. Provided

further that the extension shall not exceed one year at a time.

During the service under this Agreement, the Party No. 1 will be liable to disciplinary action in accordance with the Rules and Regulations

framed by the school from time to time even with retrospective effect, for any art of insubordination, intemperance or other misconduct, or the

commission of an act, which constitutes a criminal offence or of any breach of non-performance of duties or any of the provisions of those present

or of any rules pertaining to the conduct of the school. These rules will normally conform to the Govt. rules in this behalf.

The Committee and the Party No. 1 agree that any dispute arising out of or relating to this contract including any disciplinary action leading to

the dismissal or removal from service or reduction in rank etc. shall be referred for arbitration of any person to be nominated by the Chairman of

Society running the school and if the arbitrator fails or neglects to act or becomes incapacitated, the Chairman of the Society shall nominate any

other person to fill the vacancy of arbitrator.

Our attention is also invited to Clause 17(2)(vii) of Chapter V relating to the withdrawal of violation of the Bye-laws of affiliation of the first

Respondent Board which reads as follows;

Absence of approved terms and conditions of service, or frequent dismissal of teachers from service.

We find that there is no dispute between both sides that a writ will lie against Unaided Private Educational Institution, if an element of Public

Interest and a corresponding public duty is attracted in the proceedings sought to be challenged in such Writ Petition.

In this regard, we are obliged to observe that the Apex Court in K. Krishnamacharyulu and Others Vs. Sri Venkateswara Hindu College of

Engineering and Another, has now resolved as follows;

It is not in dispute that executive instructions issued by the Government have given them the right to claim the pay scales so as to be on a par with

the government employees. The question is when there are no statutory rules issued in that behalf, and the institution, at the relevant time, being not

in receipt of any grants-in-aid; whether the Writ Petition under Article 226 of the Constitution of India is not maintainable? In view of the long line

of decisions of this Court holding that when there is an interest created by the Government in an institution to impart education, which is a

fundamental right of the citizens, the teacher who impart the education get an element of Public Interest in the performance of their duties. As a

consequence, the element of Public Interest requires regulation of the conditions of service of those employees on a par with government

employees. In consequence, are they also not entitled to the parity of the pay scales as per the executive instructions of the Government? It is not

also in dispute that all the persons who filed the Writ Petition along with the Appellant had later withdrawn from the Writ Petition and thereafter the

Respondent Management paid the salaries on a par with the government employees. Since the Appellants are insisting upon enforcement of their

right through the judicial pressure, they need and seek the protection of law. We are of the view that the State has obligation to provide facilities

and opportunities to the people to avail of the right to education. The Private Institutions cater to the need of providing educational opportunities.

The teacher duty appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The

question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When

an element of Public Interest is created and the Institution is catering to that element, the teacher, being the arm of the Institution, is also entitled to

avail of the remedy provided under Article 226 the Jurisdiction part is very wise. It would be a different position, if the remedy is a private law

remedy. So, they cannot be denied the same benefit which is available to others. Accordingly, we hold that the Writ Petition is not maintainable.

They are entitled to equal pay so as to be on a par with government employees under Article 39(d) of the Constitution.

We therefore hold that the above Writ Petition is maintainable in law and therefore, we set aside the order of the learned Single Judge dated

2.3.1990 in WP No. 8227 of 1988.

However since the learned Single Judge had not gone into the merits of the case and also had not decided as to the validity of the reasons

mentioned in the impugned order, we are of the view that the Writ Petition is to be considered by learned Single Judge on merits, in the light of the

decision we have taken as to the maintainability of the Writ Petition and to pass appropriate orders.

In the result,

(i) the Writ Appeal is allowed;

(ii) the order of learned Single Judge is set aside;

(iii) the Writ Petition is to be decided by learned Single Judge on merits.

(v) However, there is no order as to costs.