Poonam Kumari v. The Director Of Education And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/56/2022 Poonam Kumari Vs.

The Director of Education and Others Ms. Anjili Nag .... for the petitioner Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondent no.1 Mr. Gopala Binnu Kumar ... for the respondent nos. 2 to 5 March 1, 2024 [AKB] Item No.7 Heard learned Advocates appearing for the parties representing the petitioner, Directorate of Education and the private respondent.

Petitioner was a teacher working under the school concerned/private respondent and she has challenged the impugned action of superannuating her from service on completion of her age of 55 years.

Learned Counsel appearing for the respondent Education Department and the private respondent opposes this writ petition taking the point of maintainability of this writ petitioner on the ground that petitioner intends to invoke constitutional writ jurisdiction against the school authority which is a private respondent though it may be affiliated by the CBSE Board, but the said private respondent is neither financed by the "State" nor its day to day affairs are controlled by the "State". On the point of maintainability which is a preliminary issue and it is well settled principle of law that in every proceeding preliminary has to be decided first. In this case preliminary issue is as to whether writ petition is maintainable under Article 226 of the Constitution of India against a private school terminating/superannuating its employee being a teaching or non teaching staff on the basis of such private school's own Rules and Regulations and in breach of any contract.

Mrs. Anjili Nag, learned Advocate representing the petitioner in support of her contention of maintainability of this writ petition relies on a judgment of the Hon'ble Supreme Court dated 13th September, 2012 in the case of Ramesh Ahluwalia - versus - State of Punjab and others reported in 2012 (12) SCC 331 particularly on paragraph 12 of the aforesaid decision by raising the issue of involvement of "Public element" though service may be contractual and under a private unaided school.

Mr. Shatadru Chakraborty, learned Advocate representing the respondent Education Authority in support of his contention that the writ petition is not maintainable relies of a recent judgment of the Hon'ble Supreme Court dated 24th August, 2022 in the case of St. Mary's Education Society and Another - versus - Rajendra Prasad Bhargava and Others reported in (2023) 4 SCC 498 and particularly on paragraph 31, 32, 33, 35, 36 and 75.3 which are quoted as here under :.

"31. As stated above, the school is affiliated to CBSE for the sake of convenience, namely, for the purpose of recognition and syllabus or the courses of study and the provisions of the 2009 Act and the Rules framed thereunder.

32. The contention canvassed by Respondent 1 is that a writ petition is maintainable against the Committee of Management controlling the affairs of an institution (minority) run by it, if it violates any rules and Bye-laws laid down by CBSE. First, as discussed above, CBSE itself is not a statutory body nor the regulations framed by it have any statutory force. Secondly, the mere fact that the Board grants recognition to the institutions on certain terms and conditions itself does not confer any enforceable right on any person as against the Committee of Management.

33. In Regina v. St. Aloysius High Secondary School, this Court held that the mere fact that an institution is recognized by an authority, does not itself create an enforceable right to an aggrieved party against the Management by a teacher on the ground of breach or non-compliance of any of the Rules which was part of terms of the recognition. It was observed as under : (SCC p.198, para 24) "24. ... The Rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these rules upon the management. But the enforcement of such rules is a matter between the Government and the management, and a third party, such as teacher aggrieved by some order of the management cannot derive from the rules any enforceable right against the management on the ground of breach or non-compliance of any of the rules."

35. Thus, where a teacher or non-teaching staff challenges the action of Committee of Management that it has violated the terms of contract or the rules of the Affiliation Bye-laws, the

appropriate remedy of such teacher or employee is to approach CBSE or to take such other legal remedy available under law. It is open to CBSE to take appropriate action against the Committee of Management of the institution for withdrawal of recognition in case it finds that the Committee of Management has not performed its duties in accordance with the Affiliation Bye-laws.

36. It needs to elaboration to state that a school affiliated to CBSE which is unaided is not a State within Article 12 of the Constitution of India [see Satimbla Sharma v. St Paul's Senior Secondary School]. Nevertheless the school discharges a public duty of imparting education which is a fundamental right of the citizen [see K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg.] The school affiliated to CBSE is therefore an "authority" amenable to the jurisdiction under Article 226 of the Constitution of India [see Binny Ltd. v. V. Sadasivan]. However, a judicial review of the action challenged by a party can be had by resort to the writ jurisdiction only if there is a public law element and not to enforce a contract of personal service.

A contract of personal service includes all matters relating to the service of the employee - confirmation, suspension, transfer, termination, etc. [see Apollo Tyres Ltd. v. C. P. Sebastian]. 75.3. It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a constitutional court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere.

While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognized as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service."

On perusal of the aforesaid judgment of the Hon'ble Supreme Court in the case of St. Mary's Education Society and Another (Supra) it appears to this Court that even if a private school affiliated to the CBSE Board violates the terms of contract or the rules of the affiliation of byelaws in case of its employee, the appropriate remedy for such employee whether a teaching or non teaching staff is to approach the CBSE Board and it would be open

to the CBSE to take appropriate action against the school management. It also appears from the aforesaid judgment that the Hon'ble Supreme Court has taken the view that any school merely affiliated to CBSE which is unaided is not a 'State' within Article 12 of the Constitution of India and the employee of such affiliation school cannot enforce a contract of personal service in writ jurisdiction unless any "public element" is involved.

It appears from the aforesaid judgement that the Hon'ble Supreme Court has taken the view that a school is affiliated to CBSE for the purpose of recognition and syllabus or the courses of study and the provisions of 2009 Act and rules framed thereunder and the CBSE itself is not a statutory body, nor the Regulation framed by it have any statutory force and the mere fact that the Board grants recognition to the institutions on certain terms and conditions itself does not confer any enforceable right on any person as against the Committee of Management.

It also appears from the aforesaid judgment of the Hon'ble Supreme Court that just by mere fact that an institution is recognized by an authority, does not itself create an enforceable right to an aggrieved party against the Management by a teacher on the ground of breach or non compliance of any of the Rules which was part of terms of the recognition.

Considering the facts and circumstances of the case as appears from record, submission of the parties and respectfully following the aforesaid judgment of Hon'ble Supreme Court in case of St. Mary's Education Society and Another (Supra), this writ petition being WPA/56/2022 is dismissed on the ground that the same is not maintainable.

Petitioner is at liberty to approach the Board for the nature of grievance if she has in accordance with law. (Md. Nizamuddin, J.)