AI Structured Summary
Not yet generated for this judgment
Judgment
Dhirendra Mishra, J.—Petitioner has filed the instant petition for direction to the respondent authorities not to retire her as contemplated in the impugned order dated 14-11-2007 (annexure P-2) with effect from 8-2-2008 and quash the impugned order.
Undisputed facts of the case are that the respondent education society is running an unaided private school namely Sri Sankara Vidyalaya in Sector-10, Bhilai, Distt. Durg. The petitioner was initially appointed temporarily on honorarium as Assistant Teacher in the year 1992 on probation for a period of 6 months. Thereafter, she was regularized and subsequently confirmed. She was served with the impugned notice dated 14-11-2007 whereby she was informed that she shall be superannuating on 8-2-2008.
Learned Counsel for the petitioner submits that as per Sub-rule (1) of Rule 56 of the Fundamental Rules of Section 2 of M.P. Sashkiya Sewak Adhivarshikiya Ayu Adhiniyam, 1997, the age of retirement of the similarly situated employees of the State is 62 years. Therefore, her retirement at the age of 58 years is arbitrary, discriminatory and violative of her constitutional right. The Society also served notice to one Ramkishun Gendre working as Gardner in the school on his attaining the age of 60 years vide order dated 15-11-2007 (Annexure RJ-1). There is no provision of superannuation age of the employees in the service conditions framed by the institution on 11-9-1998 and 1-10-2007, therefore the service condition of its employees shall be governed by the service condition applicable to the similarly situated employees of the State Government. The institution is affiliated with Central Board of Secondary Education (for short, CBSE). Chapter 7 of the Affiliation Byelaws deals with service rules of the employees. Clause 10 of Affiliation Byelaws of CBSE deals with staff and service conditions. It was further argued that the institution is permanently affiliated with the CBSE. The affiliation byelaws specifically provide that school should have well defined conditions of service as per norms of the State/Union Territory. Each school has to frame service rules for its employees, which is to be as per the Education Act of the State/ Union Territory, if the Act makes adoption of the same obligatory, otherwise as per the service rules given in the said byelaws. Clause 30 provides for retirement of the employees, according to which, the age of superannuation has been mentioned as 60 years. She further submits that if the age of superannuation falls during the academic session, the concerned employee shall retire at the end of academic session. The above clause also provides for grant of extension by the Managing Committee. It was argued that since the institution has not framed service rules for its employees as per the Education Act of the State and the Act does not make adoption of the same obligatory, the service of the petitioner shall be governed by Affiliation Byelaws of CBSE.
On the other hand, the respondents in its reply as well as in the additional reply contended that the respondents institution being unaided private institution, is not the authority within the ambit of Article 12 of the Constitution and, therefore, the instant petition under Article 226 of the Constitution of India is not maintainable. The Madhya Pradesh Sashkiya Sevak (Adhivarshiki Aayu) Sanshodhan Adhiniyam, 1984 only provides the age of superannuation at 62 years for government employees and teachers as well as employees of the Government aided school. The above provision is not applicable in the respondents institution, which is unaided private institution. Since the respondents institution is totally unaided private school, it is free to fix the age of superannuation. The other private unaided school running in Bhilai area and affiliated to SBSC have fixed the age of superannuation at 58 years or less. It was further agued that though the age of retirement is not mentioned in the service conditions dated 11-9-1998 framed by the respondents, but the provision of M.P. Industrial Employment (Standing Orders) Rules, 1963, which is applicable to all employees, provides for retiral age of employees as 58 years. So far as retiring the Gardner Ramkisun Gendre at the age of 60 years is concerned, he declared his date of birth as 5-4-51. He was repeatedly called upon to produce proof of his date of birth and when he produced the Transfer Certificate, he was immediately retired on 15-11-2007 as he had already crossed the age of superannuation. Denying the allegation that the other teachers namely Mr. Joshi, Madam Pramila Sarpal and Mr. Mishra were also allowed to continue in the service though they have also crossed the age of 58 years, it is submitted that their services have been hired on consolidated emoluments after their retirement from Bhilai Steel Plan and they are not the regular employees of the institution and they have been engaged as they are expert of their subjects. The institution has already revised/modified service conditions of its employees on 12-11-2007 vide Annexure R-6, according to which, age of retirement of employees is 58 years.
I have heard learned Counsel for the parties.
On the basis of the pleadings of the respective parties and their legal submissions, following question emerges for adjudication of this petition:
Whether a writ of mandamus directing the Private Educational Institution affiliated by the Central Board of Secondary Education for implementing the service conditions in relation to retirement as per the Central Board of Secondary Education Affiliation Bye- laws can be issued?
Indisputedly, Sri Sankara Vidyalaya is a private unaided institution affiliated to Central Board of Secondary Education. The school is run by respondent No. 1, Sri Sankara Education Society. The petitioner was confirmed as Assistant Teacher in Sri Sanakra Vidyalaya. She was served with impugned memo dated 14-11-2007 whereby she was informed that she shall be superannuating on 8-2-2008.
The question for consideration is whether CBSE affiliation bye-laws confer statutory right to employees/teachers of a private unaided institution, which is affiliated to CBSE?
Respondent No. 1 is affiliated private unaided institution newly affiliated by the CBSE. The CBSE has framed affiliation bye-laws. Chapter-I of the bye-laws deals with short title and definitions. Chapter-II envisages norms of affiliation. The applications for affiliation and follow up action is governed by Chapter-III whereas, Chapter-V deals with withdrawal of affiliation of affiliated schools. Chapter-VII prescribes service rules for employees of affiliated/to be affiliated schools with the Board. Chapter-IX prescribes minimum qualification for Heads and Teachers of affiliated schools. Chapter-X empowers the Board to grant exemption from minimum qualification in respect of Heads and Teachers under special circumstances for some years. Clause 2 (1) (22) of the said byelaws defines private unaided school as a school run by a society /trust duly constituted and registered under the provisions of Central / State Act not getting any regular grant-in-aid from any Government sources. Clause 3 of Chapter 2 deals with the Norms of Affiliation. Bylaw (3) (C) (v) (e) of the Affiliation Byelaws further provides that the schools which are permanently affiliated, will observe various `Dos'' and `Don''ts; mentioned in Chapter II bye-Laws 3 of the Bye- Laws. All other condition of Affiliation Bye-Laws of the Board will also be applicable `mutatis mutandis''. Clause 10 deals with Staff and Service Conditions. Sub-clause 3 of Clause 10 envisages that the school should have well defined conditions of service as per norms of the State / Union Territory Government and should issue letters of appointment to the employees at the time of joining service and should also sign a contract of service.. The contract should be similar to the format given in the appendix 3 in this Byelaws or in the form prescribed by the State Government/ Union Territory Government, in case the Act of the State / Union Territory provides so. Chapter 7 deals with service rules for employees. Clause 24 of this Chapter makes it mandatory for each school affiliated with the CBSE to frame Service Rules for its employees which is to be as per the Education Act of the State /Union Territory, if the Act makes adoption of the same obligatory, otherwise as per the Service Rules given in subsequent sections. Clause 30 of Chapter 7 deals with retirement and it provides that every employee including head of institution shall retire from the service on attaining the age of 60 years, however if the age of superannuation falls during the academic session, the concerned employee will retire at the end of the academic session. Sub-clause 2 of Clause 30 confers power on managing committee of granting extension as per rule of State / Union Territory.
In the matter of Binny Ltd. and Anr. v. V. Sadasivan and Ors., while dealing with the maintainability of the writ petition under Article 226 of the Constitution of India, it has been held that though the power of the High Courts under Article 226 is very wide and these powers have to be exercised by applying the constitutional provisions and judicial guidelines and violation, if any, of the fundamental rights guaranteed in Part III of the Constitution. In the matter of employment of workers by private bodies on the basis of contracts entered into between them, the Courts have been reluctant to exercise the powers of judicial review and whenever the power is exercised as against private employers, it is solely done based on public law element involved therein. It has been further held that where there is a contract between the litigants, in such a case the express or implied terms of the agreement should normally govern the matter. Referring various earlier judgments of the Hon''ble Supreme Court, it has been held that:
Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre- eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action.
In the matter of K. Krishnamacharyulu and others v. Sri Venkateswara Hindu College of Engineering and Anr., the appellants were appointed on daily wages as Lab Assistants in a private college. Executive instructions issued by the Government had given them the right to claim the pay scales so as to be on a par with the government employees. The Hon''ble Supreme Court, while considering maintainability of the writ petition against a private unaided institution by its non- teaching staff, held that 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 remedy provided under Article 226; the jurisdiction part is very wide. It would be a different position if the remedy is a private law remedy and accordingly, it was held that the writ petition is maintainable.
In the matter of Sushmita Basu and Ors. v. Ballygunge Siksha Samity and Ors., the appellants were teachers of a recognized private school in the State of West Bengal. They filed a writ petition in the High Court of Calcutta praying for the issue of writ of mandamus directing the authorities of the school to fix the salaries of teaching and non-teaching staff of the school and to remove all anomalies in the scales of pay as recommended by the Third Pay Commission as extended to other government-aided schools and government schools. Learned Single Judge of the High Court allowed the writ petition and directed the Director of School Education to enforce parity in payment to the writ petitioners in pay scales and dearness allowances on a par with the government-aided institutions and to consider whether there has been any discrimination or anomaly in the fixation of pay scales of teachers by the management, with respect to the teaching staff in the institution. On appeal by the management, the Division Bench of the High Court allowed the appeal and set aside the decision of the learned Single Judge. Feeling aggrieved thereby, the five teachers preferred appeal before the Supreme Court. Dismissing the appeal, the Hon''ble Supreme Court held that in the absence of a statutory provision it is not possible to hold that interference by the High Court under Article 226 of the Constitution was warranted in the present case. In para-4 of the above judgment, it has been observed thus:
In this context, we must also notice that the writ petition in the High Court is filed for the issue of a writ of mandamus directing a private educational institution to implement the recommendations of the Third Pay Commission including their implementation with retrospective effect. Even the decision relied on by learned Counsel for the appellants, namely, K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg. shows that interference under Article 226 of the Constitution of India to issue a writ of mandamus by the Court against a private educational institution like the first respondent herein, would be justified only if a public law element is involved and if it is only a private law remedy no writ petition would lie. We think that even going by the ratio of that decision, a writ of mandamus could not have been issued to the first respondent in this case.
In the instant case, admittedly, the petitioner was employed by the respondent Education Society as Assistant Teacher. There is no statutory provision or even the Government order directing the private unaided educational institution to frame service conditions at par with the Government teachers or teachers of the Government-aided schools. Nothing has been brought to the notice of this Court that the schools in the State were directed to implement conditions of service provided under the Central Board of Secondary Education Affiliation Bye-laws. The affiliation bye- laws framed by the Central Board of Secondary Education prescribes certain norms for affiliation including service conditions of teachers and employees of the affiliated schools. The Board is vested with the power to accord affiliation to any institution to impart education and the students of such schools may participate in the examination conducted by CBSE. It also confers power on the Board to ensure that institutions abide by the affiliation norms and in case, they flout the norms of the Board, provisional affiliation or even permanent affiliation can be withdrawn by the Board. However, the affiliation bye-laws of the CBSE cannot confer statutory right to a teacher or employee of such institution. The writ petition at the instance of teacher/employee of such private unaided institution for enforcing service conditions, particularly, in the matter of retirement as prescribed under the affiliation bye-laws of the CBSE, is not maintainable.
In the result, the petition being devoid of any substance deserves to be dismissed and it is hereby dismissed.