JUDGMENT Sudhir Narain, J.
1. The petitioner is challenging the validity of the order of transfer dated 17.6.1997, transferring him from D.A.V. Public School, Rejendra Nagar, Shahibabad, district Ghaziabad to D.A.V. Public School situate in Bihar, passed by the D.A.V. College Managing Committee, Chitra Gupta Road, New Delhi, under the signature of its Director.
2. Daya Nand Angio-Vedic College Trust and Management Society, New Delhi is a registered society under the provisions of Societies Registration Act, 1860. The Society is running about 600 educational institutions all over India, The Society has a Managing Committee known as the Management Committee of Daya Nand Anglo-Vedic College Trust and Management Society, New Delhi (in short the 'Managing Committee'). It has the Institution at Shahibabad known as D.A.V. Public School, Rajendra Nagar, Shahibabad, district Ghaziabad (in short the School). In the Year 1984 the Managing Committee advertised the post of Principal inviting applications from prospective candidates for appointment on the post of Principal of the School. The petitioner applied for appointment and he was selected. The Managing Committee under the signature of Organising Secretary, dated 25th July, 1984, appointed the petitioner on the post of Principal. The petitioner was offered appointment on certain in terms and conditions. The petitioner accepted these conditions. He was then appointed as principal of the School.
3. The Managing Committee applied for affiliation to the Central Board of Secondary Education (in short C.B.S.E.). It granted affiliation to the School in the year 1986. It framed Affiliation Bye-laws which came into force on 28.1.1988. On 17.6.1997 the petitioner has been transferred from D.A.V. Public School, Shahibabad, district Ghaziabad to D.A.V. Public School situate in Bihar and Sri O.P. Mehta has been posted as Principal of the Institution at Shahibabad on transfer.
4. One of the basic questions is as to whether the writ petition is maintainable against the order passed by Managing Committee. It depends upon the question whether it is a statutory body and secondly whether it has violated any statutory provision while passing the impugned order of transfer.
5. Sri A.K. Yog, learned Counsel for the petitioner has traced the history of establishment of C.B.S.E. The Government of India passed a resolution dated 1st July, 1929 which was published in the Gazette of India on November 16, 1929, for establishment of an organisation to supervise and regulate High School Education of Rajputana including Ajmar, Mewar, Central India and Gwalior. It provided for Constitution of a Board and its functions. A copy of the resolution has been annexed as Annexure-1 to the writ petition. The resolution itself does not indicate under what provision this resolution was passed.
6. Learned Counsel for the petitioner has placed reliance upon Section 71 of the Government of India Act, 1919. Sub-section (1) of Section 71 of this Act provides that Local Government of any part of British India to which the Section for the time being applies, may propose to the Governor General in Council the draft of any regulation for the peace and good Government of that part with the reasons for proposing the regulation. Sub-section (2) provides that the Governor-General in Council may take any such draft and the reasons into consideration and when any such draft has been approved by the Governor-General, it shall be published in the Gazette of India and in the local Official Gazette, if any, and shall thereupon have the like force of the law and be subject to the like disallowance as if it were an Act of the Indian Legislature.
7. There is nothing to show that any Local Government of any part of British India proposed to the Governor general in Council the draft of any regulation for the peace and good Government. The notification dated 11th November, 1929 which has been annexed by the petitioner, indicates that it is only a resolution of the Government of India in the foreign Political Department. It is not a regulation purported to have been framed under Section 71 of the Government of India Act, 1919. It is a mere resolution to establish an organisation to supervise and regulate High School and Intermediate Education in Rejputana (including Ajmer-Mewar), Central India and Gwalior. Under this Act the Board was constituted with the powers conferred on it. Under Clause 7, the Board was conferred with various powers including the power to conduct examination, admit candidates to its examination, recognise the institutions for the purpose of its examinations, prescribe courses of instructions for recognised institutions etc.
8. Professor C.L. Anand, in his authoritative book "Constitutional Law and History of Government of India" at page 267, considered the procedure of framing rules and regulations under the Government of India Act, 1919 wherein it has been observed that rules and regulations framed by the Government are to be tabled before the Parliament. It was observed that where no special provision existed, rules were to be framed in two ways viz. (a) by the approval process of laying the rules on the table of Parliament for certain number of days and (b) more formal procedure of positive resolution of Parliament. It may be useful to quote the procedure as considered in the said book :-
"Under the first of these two methods rules were made by the Governor-General in Council, with the sanction of the Secretary of State in Council and laid before both the Houses of Parliament as soon as might be after they were made. If either House of Parliament presented an Address to His Majesty against any such rule, within 30 days after it had been laid before it, such rule might be annulled by His Majesty in Council but without prejudice to the validity of anything previously done thereunder. Under the second method rules were laid in draft before both the Houses of Parliament, and were not made unless both the Houses by resolution approved the draft without modifications or with such modifications to which both the Houses agreed."
9. There is nothing to show that the procedure as pointed out above were followed by placing the resolution before the Parliament. It was, in the circumstances, only a resolution of the Government of India to constitute an organisation for exercising the powers conferred on it. The Board was not created under any legislative enactment.
10. A counter affidavit has been filed on behalf of Central Board of Secondary Education. In para 3 of the counter affidavit it has been admitted that C.B.S.E. has not been created under statute. The version is "It is an autonomous and independent body. The expenses for running the organisation of C.B.S.E is not borne by the Government. It gets no aid, grant or subsidy from the Government. It is not "State" within the meaning of Article 12 of Constitution of India. It was established by the Government of India in 1929 vide its resolution No. F-115-R, 28, dated July 1, 1929 and is now under the Union Ministry of Human Resources Development, Government of India."
11. The Government's resolution No. F-115-R, 28, dated July 1, 1929 was amended from time to time. The resolution dated 27th February, 1962 enlarged the territorial jurisdiction of the Board to the entire country and made drastic amendments. The Board was reconstituted. The Secretary to the Government of India, Ministry of Education was made its Controlling Authority. Clause 9 of the resolution defines the powers and functions of the Board and confers the power on it to conduct examinations and grant diplomas/certificates, to prescribe courses of instructions for examinations, to admit candidates to the examinations conducted by the Board and to recognise the institutions for the purpose of its examinations. Clause 16 confers power on the Board to make regulations in respect of matters enumerated therein including the power of lay down the conditions under which the Board may recognise the institutions for the purpose of its examinations. The C.B.S.E. has not been established under any statute. It can be treated only as an authority created by the Government of India to carry on certain objects and functions as conferred on it.
12. It is further contended that even if C.B.S.E. is not a 'State' within the meaning of Article 12 of the Constitution of India, it should be treated as an authority as writ petition is maintainable against an authority. Reliance has been placed upon Poornima Banerji v. Council for India School Certificate Examination, New Delhi and Ors., (1995) 1 UPLBEC 265, wherein the decision of the Council for Indian School Certificate Examination was challenged whereby the petitioner therein was not held eligible for admission to Class-XI of the I.S.C. examination. The Court held that the Council for Indian School Certificate Examination is an authority and the writ petition can be issued to an authority under Article 226 of the Constitution of India. The petitioner, in this case, has not challenged any order/resolution of the C.B.S.E.
13. The petitioner is seeking writ of certiorari to quash the order passed by the Management Committee of D.A.V. College, respondent No. 2, transferring the petitioner from D.A.V. Public School, Sahibabad, district Ghaziabad to another institution. The contention of the learned Counsel of the petitioner is that writ petition is maintainable against a Committee of Management controlling the affairs of an institution run by it, if it violates any rules and bye-laws laid down by the C.B.S.E. Firstly, as discussed above the C.B.S.E. itself is not a statutory body nor the regulations framed by it has any statutory force. Secondly, the mere fact that the Board grants recognition to institutions on certain terms and conditions, itself does not confer any enforceable right on any person as against the Committee of Management. In Km. Regina v. St. Aloysins High Elementary School and Anr., AIR 1971 SC 1920, the Supreme Court held that the mere fact that an institution is recognised 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 :-
"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."
14. In Km. Anita Verma v. D.A.V. College Management Committee, Unchahar, Rai Bareilly, (1992) 1 U.P.LB.E.C. 30, where the services of a teacher were terminated, the Court held that the writ petition under Article 226 is not maintainable as the institution cannot be treated as the instrumentality of the State. The matter was considered in detail in M/s. Habans Kaur v. Committee of Management, Guru Teghahadur Public School, Meerut and Anr., 1992 Labour and Industrial Cases 2070, wherein the services of the petitioner were terminated by the Managing Committee of the institution recognised by the C.B.S.E. It was held that the Affiliation Bye-laws framed by the C.B.S.E. has no statutory force. The Court under Article 226 of the Constitution of India can enforce compliance of statutory provision against a Committee of Management as held in a Full Bench decision of this Court in Aley Ahmad Abdi v. District Inspector of Schools, Allahabad and Ors., AIR 1977 All. 539. The Affiliation Bye-laws of C.B.S.E. having no statutory force, the only remedy against the aggrieved person is to approach C.B.S.E. putting his grievances in relation to the violation of the Affiliation Bye-laws by the institution.
15. Learned Counsel for the petitioner has placed reliance upon the decision in K. Krishnamacharyulu and Ors. v. Sri Venkateswara Hindu College of Engineering and Anr, 1997 (2) E.S.C. 1229 (SC), wherein the petitioners, who had been appointed as non-teaching staff in a private college, claimed equal pay for the equal work at par with other Government employees on the basis of Government instructions which were made applicable to the private colleges, the Supreme Court held that writ petition under Article 226 of the Constitution is maintainable in the High Court as the jurisdiction under that Article is very wide. The petitioners were entitled to equal pay so as to be at par with other Government employees under Article 39(d) of the Constitution. The Apex Court, however, cautioned that the position would not be different if the remedy is a private law remedy. A public body is bound to follow Government Orders affecting public interest and if it violates to follow such Government Order the writ petition shall be maintainable to enforce such order. In the present case, however, the petitioner has not shown that there is any statutory provisions or Government Order against the transfer of Principal from one school to another by the Society. On the contrary the Principals of the Government Schools, Central Schools, Sainik Schools and Navodaya Schools recognised by C.B.S.E., governed by the Affiliation bye-laws, are transferred from one school to another as a matter of routine.
16. In Arvind Kumar Verma v. Central Board of Secondary Education and Anr., 1996 HWD (Vol. I) 265, where students who had already been admitted in an institution were refused admission to the next higher class on the ground that they secured less marks, the Court holding that a private body performing the public duty cannot play freely with fundamental right in respect of education of students, issued writ of mandamus commanding the Management of the institution under Article 226 to admit the students who were entitled to be admitted. This case is based on the principle that even if there is no violation of statutory rules but if a private body performing the public duty, fails to perform such duty, the Court can enforce it by issuing writ under Article 226 of the Constitution. If, however, the matter relates totally regarding breach of contract, the aggrieved person can seek appropriate remedy as available to him under law instead of approaching the Court under Article 226 of the Constitution. Where a teacher or non-teaching staff challenges 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 C.B.S.E. or to take such other legal remedy available under law. It is open to C.B.S.E. 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 the duties in accordance with the Affiliation Bye-laws.
17. In Om Prakash Rana v. Swrup Singh Tomar and Ors., AIR 1986 SC 1672, wherein the Principal was transferred from one educational institution to another under the provisions of U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder it was held that in view of the enactment of U.P. Secondary Education Service Commission and Selection Board Act, 1982, Regulations 55 to 62 of Chapter HI of the Regulations framed under U.P. Intermediate Education Act, 1921 will not be applicable. In Jawahar Lal University v. Dr. K.S. Jawtkar and Ors., AIR 1989 SC 1577, it was held that where an Assistant Supervisor is appointed by the University at a center of Post-Graduate studies established in the University that would not result as transfer of an incumbent from one University to another if the center of study is changed.
18. In Chandrika Ram v. General Manager, U.P. State Cement Corporation Ltd., Churk Cement Factory, Mirzapur and Ors., 1997 (2) ESC 1297 (Allahabad), the Head Master of a primary school was transferred by the Committee of Management of the institution to another institution run by it, the Court held that the services of such teacher will be governed by the provisions of U.P. Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 and there was no provision for transfer of teachers appointed in the institution, they cannot be transferred. Learned Counsel for the respondent contended that if there is no specific provision for transfer from one institution to another but there was no prohibition to transfer of a teacher while appointed by a society/corporation which runs several institutions, the transfer could be made. It is not necessary to dwell upon this controversy and the correctness of the aforesaid decision. Admittedly at the time of appointment, the petitioner accepted for transfer as one of the terms and conditions of appointment, the Managing Committee is entitle to transfer the Principal/Teacher.
19. In my opinion the writ petition against a Committee of Management of an institution recognised by C.B.S.E. under Article 226 of the Constitution of India is maintainable only when it has violated any statutory provision, failed to perform its public duty or obligation imposed by it under the Constitution/Government Orders. The writ petition against the appointment, promotion, termination of service or regarding breach of any terms and conditions of service is not maintainable unless it is covered by the exceptions referred to above. The remedy of an aggrieved party is to seek an appropriate remedy under private law or is to seek an appropriate remedy under private law or to approach the C.B.S.E.
20. I have also examined the merits of the case. The petitioner was appointed by the Managing Committee, respondent No. 2 on 25th July, 1984 when it had not obtained the affiliation from the C.B.S.E. The affiliation was granted in the year 1986 and the Affiliation Bye-laws came into force on 28.1.1988. The petitioner at the time of entering into the service signed the terms and conditions of service, Annexure-1 to the writ petition. Clause 6 of the terms of the conditions of appointment provides that in the matter of general conditions of service, the petitioner will be governed by the Rules of the D.A.V. College Managing Committee. The Rules of Managing Committee Is Annexure-1 to the counter affidavit. Sub-clause (7) relates to appointment and general conditions of service. Sub-clause (8) reads as under :-
"The Managing Committee has the right to transfer employee from one institute to another when it considers necessary."
The petitioner had taken the employment with this specific condition that he can be transferred to any of the institutions of respondent No. 2. The petitioner cannot now raise grievance that his transfer is made against the terms and conditions of the contract.
21. It is, however, contended by the learned Counsel for the petitioner that the terms and conditions of service which were accepted by the petitioner at the time of his appointment shall be taken to have been abrogated or modified after the Affiliation Bye-laws came into force. There is no specific rule under the Affiliation Bye-laws that terms and conditions already entered into between the Managing Committee and the teacher/employees of an institution shall stand abrogated or modified. On the other hand, Clause 19 (x) of Chapter VI of the Affiliation Bye-laws provides that the Society/trust running the schools shall have powers to lay down conditions of service as per norms of CBSE/Government. It has not been shown that there is any other provision in the Bye-laws which provides that a Principal/Teacher/ employee cannot be transferred by the Managing Committee of the Society to another institution which is run by such Society/Trust.
22. It is submitted that every institution has a Managing Committee to manage the affairs of such institution. Clause 2 (ix) of Chapter I defines 'School Management Committee' as the Committee managing the school. Clause 20 of Chapter VI lays down, for its constitution, the powers. Clause 21 provides for powers and functions of School Management Committee. The school Management Committee has power of making the appointments of teachers and non-teaching staff.
23. The powers and functions of the School Managing Committee is, however, subject to the Control of the Society. Sub-clause (1) of Clause 21 reads as under:-
"Subject to over all control of the Society/Trust, the School Managing Committee shall have the following powers:-"
...............................................
24. Clause 19 (x) of Chapter VI permits the Managing Committee of the Society/Trust to lay down conditions of service of the teachers. The only condition is that the conditions which are laid down by it are not contrary to the Affiliation Bye-laws or the norms laid by C.B.S.E./ Government. It does not permit the School Managing Committee to lay down and terms and conditions of service. The School Managing Committee is to manage the affairs of the institution but subject to the control of the Managing Committee of the Society/Trust running the School.
25. The petitioner has not shown that any Principal/Teacher appointed in the School recognised by the C.B.S.E. cannot be transferred to any other institution maintained by a Society, the Government or Trust affiliated to C.B.S.E.
26. The next contention of the petitioner that the appointing authority of the petitioner shall be treated the School Managing Committee, respondent No. 4 and respondent No. 2 has no jurisdiction to pass any order of transfer. As discussed above, the petitioner was appointed by respondent No. 2 and not by respondent No. 4 as at that time the D.A.V. Public School Shahibabad was not affiliated to C.B.S.E. Secondly, any teacher who is appointed, is bound by the terms and conditions of the Managing Committee of the Society which runs the Institution. A Society may establish various institutions. It can take appropriate decision to co-ordinate functioning of the various institutions run by it including transfer of Principal/Teacher from one institution to another institution. The Local Management Committee of the School is to function under the control and guidance of the Managing Committee of the Society.
27. The last submission of learned Counsel for the petitioner is that the order of transfer is vitiated by malafides. He referred to certain proceedings in Original Suit No. 79 of 1997, D.A.V. Trust v. Ashwini Kumar Chopra and Ors. This has been explained in the counter affidavit filed on behalf of respondent No. 2. It was in respect of the election of the members of D.A.V. College Managing Committee. The petitioner applied to Delhi High Court for being given chance to vote according to proposed amendment in the Rules. This application was dismissed by the High Court. The petitioner has failed to substantiate any ground that the order is vitiated by malafides.
28. In the result there is no merit in this writ petition and it is accordingly dismissed with costs.