JUDGMENT Yatindra Singh, J.
1. 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 D.P.S. 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 D.P.S. 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 D.P.S. 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 D.P.S. 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 flde 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-I) 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 wasn't 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 D.P.S. School is a State within the meaning of Article 12 of the Constitution.
(ii) Whether the Board is a State within the meaning of Article 12 of the Constitution of India.
(iii) Whether the 'Affiliation bye-laws' have statutory force.
(iv) 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.
(v) Whether the Committee of Management of the School, while dealing with the service matters of its employees or the teachers, is performing public duty.
(vi) Whether a writ petition is maintainable against a privately managed school for violation of the service rules.
(vii) Whether a writ petition is maintainable against the Board for non-observance of its bye-laws.
(viii) Whether the petitioners are entitled to any relief.
The points II to V were framed by us earlier, however we have substituted the word 'Board' in place of the word 'C.B.S.E.' POINT-1 & II : D.P.S. SCHOOL--NOT STATE; BOARD--STATE
7. The counsel for the parties have cited numerous decisions (see Endnote 2) laying down the guidelines to find out when a body can be held to be the State within the meaning of Article 12 of the Constitution. However, the majority decision in P.K. Biswas v. Indian Institute of Chemical Biology, 2002 (5) ESC 286 has summarised the principles as follows :
"The picture that ultimately emerges is that, the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex-hypothesis, be considered to be a State within the meaning of Article 12. The question in each case would be--whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."
In light of these principles, let's consider whether the D.P.S. School and the Board are the State within the meaning of Article 12 or not.
D.P.S. School--Not State :
8. The D.P.S. School is managed by a private committee of management. There is neither any pleading nor any averment that it is a State within the meaning, of Article 12 of the Constitution. There is also no pleading that it receives any financial aid from the Government or a body that is State within the meaning of Article 12 of the Constitution. During arguments a statement was made at the bar that the D.P.S. School does not receive any financial aid or grant-in-aid from any Government agency. There is no Government control. The D.P.S. School is not a State within the meaning of the Article 12 of the Constitution.
Board--State :
9. The Government of India passed a resolution on 1.7.1929 for establishing an organisation to supervise and regulate High School and Intermediate Education in Rajputana, Central India, and Gwalior. In order to give it a concrete shape, the Government issued a notification on 11.11.1929; it was published in the official Gazette on 16.11.1929. In pursuance of the aforesaid notification, a society in the name of 'The Board of High School and Intermediate Education for Rajputana (including Mewara) Central India and Gwalior, Ajmer was formed. It was registered on 2.1.1935 under the Societies Registration Act, 1860. The name of the society was changed to The Central Board of Secondary Education, Ajmer' and this change was also registered on 14th November, 1961 under the Rajasthan Societies Registration Act, 1958.
10. The constitution of the Board was revised. The revised constitution was adopted by the Board in its meeting held on 11th February, 1961 and was ratified on 2nd March, 1961. It was published in the official Gazette on 27th February, 1962. Clause 4 of the Constitution states that the Educational Advisor of Government of India shall continue to be the Controlling Authority of the Board. However, it is admitted case that now the Secretary, Human Resource Department, Government of India is ex-qfjicio Controlling Authority of the Board.
11. Clause 6 of the Constitution (see Appendix-1) explains the composition of the Board. It includes the Chairman and the Vice Chairman {Clause 6 (i) and 6 (ii)}. They along with the secretary of the Board are the officers of the Board. They are not elected but are appointed by the controlling authority. The representatives mentioned in Clause 6 (iii) to (xi) and (xvii) are the representatives of different bodies. They are either Government servants or representatives of the Government departments or the representative of the bodies that are State within the meaning of Article 12 of the Constitution. Clause 6 (xviii) and (xix) include persons from different professions, eminent educationalists, and teachers of the institutions recognised by the Board however they are not nominated by the professional bodies or the educational institutions but are nominated by the Controlling Authority. It is correct that the persons mentioned in Clause 6 (xii) to Clause 6 (xv) are the Head Master or the teachers. They are neither representatives of the bodies that are State within the meaning of Article 12 of the Constitution nor are they appointed by the controlling authority, but their number is in minority.
12. The constitution of the Board indicates that there is deep and pervasive control of the Government of India through the Controlling Authority. The details of the clauses indicating the same are as follows :
(a) The controlling authority may terminate membership of any member appointed or nominated in case his continuance in the office is not in the interest of the Board. {Clause 8 (4)}
(b) The recognition of any institution cannot be withdrawn without prior approval of the controlling authority {explanation Note to Clause 9 (iv)}.
(c) The Controlling Authority has right to communicate his views to the Board regarding any matter with which the Board has concern and in case the Board does not take action on the same, it may issue directions and the Board is required to comply with the directions. He can also take immediate action without previously consulting the Board. He can also suspend the Board if it defaults in the performance of duties and has right to appoint an administrator (Clause 10).
(d) The Chairman, Vice-Chairman and Secretary are the officers of the Board and are appointed by the Controlling Authority {Clause 12 (1) and 13 (1)}.
(e) The Board has power to make regulations but they do not take effect unless sanctioned by the Controlling Authority {proviso to Clause 16 (2)(.
(f) The Controlling Authority has right to classify documents as a secret and in that event the auditor has to accept the certificate issued by the Chairman regarding the facts stated in those documents in the place of the documents {proviso to Clause 19 (2)}.
(g) The Board cannot amend the constitution without approval by the Controlling Authority (Clause 21).
13. The respondents in their affidavits state that the Chairman (who is employee of the Board) is paid by the Board, however the other representatives are paid by their respective departments from where they come but they draw allowances from the Board for the meeting. They have also filed brochures and annual reports issued by the Board. These documents indicate that, The Board is self financing body;
• It does not receive any financial assistance from the Government;
• It raises sufficient funds through examination fees.
The fact that the Board does not receive any financial aid from the Government is not conclusive factor to determine whether it is State within the meaning of Article 12 or not: other factors also have to be looked into. It is cumulative effect that is to be determined.
14. Clause 1 of the Constitution states that the object of the Board is to conduct examination at the secondary stage of examination and such other examination as it considers fit subject to the approval of the Controlling Authority or as it may be called upon by the Government of India. The services of the Board to examine the candidates can be availed by any educational institution in or outside India.
15. Clause 9 of the Constitution of the Board (See Appendix-1) deals with its power and functions. It includes power to,
(a) conduct examinations,
(b) grant diplomas/ certificates,
(c) prescribe courses of instructions for examinations,
(d) admit candidates,
(e) recognise institution for the purpose of its examinations,
(f) adopt measures to promote physical and moral well being of the students,
(g) supervise health and discipline of the students,
(h) take such step as are necessary to promote the standards of secondary education,
(i) make Regulations for prescribing the text books,
(j) advise the Administration of Union Territories as to the courses of instruction and syllabi of middle school education.
16. Education at every level is fundamental and is matter of public importance: the country's future depends upon the same. Clause 9 of the Constitution indicates that the Board has been empowered with functions relating to secondary education and deals with issues of public importance.
17. The last paragraph of Clause 9 states that educational institutions recognised by the Board of Higher Secondary Education Delhi shall be deemed as institutions recognised by the Board. A note, appended to it, says that the Board of Higher Secondary Education Delhi was merged the Central Board on 1.7.1962. It shows that the Board has taken over the functions of the Board of Higher Secondary Education Delhi. This Board, which was merged was constituted by Union Territory of Delhi and was "State" within the meaning of Article 12 of the Constitution.
18. The year 2003 was a platinum jubilee year of the Board. The annual report of the year 2003 is on the record of the case. It states that only 309 schools were recognised by the Board in the year 1962 and 6679 schools were recognised in the year 2003. This includes 855 Kendriya Vidyalay, 1698 Government Schools, 417 Jawahar Navodaya Vidyalay and 3799 independent schools throughout the territory of India. Apart from it, it also includes 103 schools in 19 other countries throughout Asia, West Africa and Russia.
19. The Union of India has clarified its stand by means of an affidavit of Under Secretary in the Ministry of Human Resources Development. In this affidavit it has been stated that:
The Government of India has established the Board to supervise and regulate High School and Intermediate (Secondary) Education (paragraph 4 of the affidavit).
• The Ministry of Human Resources Development has full power and control over the Board (paragraph 13 of the affidavit).
20. Considering,
(i) the Board was started by the resolution of the Central Government; and
(ii) the control exercised by the Government through the controlling authority namely the Secretary in the Ministry of Human Resource Department; and
(iii) the Board has been entrusted with the educational standard not only at the national level but has been permitted to affiliate institutions outside the country; and
(iv) the educational standards are fundamental and relate to public policy; and
(v) the composition of the Board, where almost all the members are either Government servants or representative of the bodies that are State within the meaning of Article 12 or are nominated by the Government through the Controlling Authority, and
(vi) the Board took over functions of Board of Higher Secondary Education of Delhi-a Board of Union Territory of Delhi and State within the meaning of Article 12 of the Constitution.
We hold that the Board is a State within the meaning of Article 12 of the Constitution.
POINT-III : BYE LAWS ARE NOT STATUTORY Service Rules required to be framed: Bye laws--Adopted as Service Rules
21. Regulations may be framed by the Board under Clause 16 of its constitution. They take effect only after sanction of the controlling authority. Clause 18 of the Constitution empowers the Board and the Committee to make bye-laws. These bye-laws have to be consistent with the resolution as well as to the regulations. The Board has framed 'Affiliation bye-laws'; they lay down conditions under which affiliation or recognition is granted to any institution.
22. Bye-law 3 of Chapter II of the Affiliation Bye-Laws is titled as 'Norms for Affiliation'. Its Sub-clause (3)(i) states that the school seeking provisional affiliation with the Board must have formal recognition of the State/U.T. Government and the application should be forwarded either by the State Government or there should be no objection certificate (N.O.C.) from the State Government. The State of U.P. has also issued guidelines on 30th November, 1991 for granting N.O.C. to the Schools. These guidelines clearly stipulate that the school shall frame Service Rules for the teachers and the employees.
23. The D.P.S. School has not framed any service rules but has obtained the N.O.C. There has been laxity on the part of State Government in granting N.O.C. to the D.P.S. School. The N.O.C. could not be granted without there being service rules. The State Government ought to have seen that the service rules are framed.
24. Bye-law No. 10 in Chapter II is titled 'Staff and Service Conditions'. This mandates that there has to be well defined service conditions and agreement between the parties in the format given in Appendix-Ill to the affiliation bye-laws.
25. Chapter VII of the affiliation bye-laws are titled as 'SERVICE RULES FOR EMPLOYEES'. Bye-law No. 24 in this chapter provides that each school affiliated with the Board shall frame service rules for its employees which will be as per Education Act of the State, in case the State Act makes adoption of the provision obligatory, otherwise as per Service Rules mentioned in the bye-laws. Under bye-law 24 (2) every school is to enter into an agreement with its employee in the format mentioned in the Education Act of the State if that Act makes the form obligatory, otherwise in accordance with Appendix-Ill mentioned in the bye-laws.
26. In our State, U.P. Intermediate Education Act, 1921 is the relevant Act; it does not make its adoption obligatory on the schools affiliated to the Board. There is also nothing in the U.P. Intermediate Education Act, 1921 which makes any contract to be entered into between the employees and the school affiliated with the Board; it merely provides the service conditions and the contract for the employees/teachers in the schools recognised under the U.P. Intermediate Education Act, 1921. In view of this, the D.P.S. School is required to frame the service rules according to the Bye-laws in Chapter VII and enter into service contract in format Appendix-III to the affiliation bye-laws. Yet neither service rules have been framed by the D.P.S. School nor is agreement in the same format as the Appendix-III to the affiliation bye-laws.
27. There has been laxity on the part of the Board too. Affiliation could not have been granted unless there were service rules and agreement in the same format as Appendix-III to the affiliation bye-laws. The Board at least ought to have ensured that the D.P.S. School frames service rules and enters into agreement in the correct format. What will be the position in absence of the service rules and agreement in format Appendix-III to the affiliation bye-laws?
Should the D.P.S. School be permitted to take advantage of its own default?
• Can the service rules mentioned in the affiliation bye-laws be deemed to be adopted as service rules by the D.P.S. School?
• Can the agreement between the parties deemed to be in the same format as in Appendix-III to the affiliation bye-laws?
28. The D.P.S. School was granted N.O.C. by the State Government on the understanding that it has or shall frame service rules and enter into agreement with its employees and teachers. It was affiliated by the Board on the understanding that it shall frame service rules on the same lines as Chapter VII of the affiliation bye-laws and enter into agreement with the teachers in the same format as Appendix-III to the affiliation bye-laws. In case, the D.P.S. School has neither framed service rules nor has entered into agreement in the correct format then it cannot take advantage of its own default. In our opinion in absence of any service rules or the agreement in the correct format, the bye-laws in Chapter VII will be deemed to be adopted as service rules by the D.P.S. School and the agreement between the parties shall also be deemed to be in the same format as Appendix-III to the affiliation bye-laws. Are the bye-laws and the agreement statutory? In this connection, let's consider Rajasthan State Road Transport Corporation v. Krishan Kant, (the Rajasthan Corporation case).
The Rajasthan Corporation Case
29. There is a Central Act known as Industrial Employment (Standing Orders) Act, 1946. It requires industrial establishment to frame Standing Orders. It also prescribes model Standing Orders. In absence of any certified order, model standing orders are applicable till the certified orders are made and published. An employee of the Rajasthan State Road Transport Corporation was dismissed. He filed a civil suit challenging his termination. His suit was decreed up to the High Court. The case was taken to the Supreme Court. The question was regarding the nature of the Standing Orders and whether the Civil Court had jurisdiction. The Supreme Court after considering the question held that the standing orders cannot be elevated to the status of statutory provision. The Court held as follows :
"The certified standing orders are not in the nature of delegated/ subordinate legislation. It is true that the Act makes it obligatory upon the employer (of an industrial establishment to which the Act applies or is made applicable) to submit draft Standing Orders providing for the several matters prescribed in the Schedule to the Act and it also provides the procedure--inter alia, the certifying officer has to examine their fairness and reasonableness--for certification thereof. Yet it must be noted that these are conditions of service framed by the employer--the employer may be a private corporation, a firm or an individual and not necessarily a statutory corporation--which are approved/ certified by the prescribed statutory authority, after hearing the workmen concerned. The Act does not say that on such certification, the Standing Orders acquire statutory effect or become part of the statute. It can certainly not be suggested that by virtue of certification, they get metamorphosed into delegated/ subordinate legislation. Though these Standing Orders are undoubtedly binding upon both the employer and the employees and constitute the conditions of service of the employees, it appears difficult to say, on principle, that they have statutory force....
Indeed, if it is held that certified Standing Orders constitute statutory provisions or have statutory force, a writ petition would also lie for their enforcement just as in the case of violation of the Rules made under the proviso to Article 309 of the Constitution. Neither a suit would be necessary nor a reference under Industrial Disputes Act. We do not think the certified Standing Orders can be elevated to that status. It is one thing to say that they are statutorily imposed conditions of service and an altogether different thing to say that they constitute statutory provisions themselves."
30. The status of the bye-laws framed by the board is on much lower footing. In the Rajasthan Corporation case, the Standing Orders were framed by the Government under a Statute: here the bye-laws are not framed by the Government but by the Board and that too, not under a statute.
31. There is nothing in the constitution of the Board to suggest that the affiliation bye-laws have statutory force. The service conditions are in the bye-laws. They are adopted between the parties through the agreement and are binding as a contract. Neither the bye-laws nor the agreement are statutory. If there is any breach of the service conditions then it is the breach of the contract and the parties may file suit or the Board may impose penalty prescribed under the bye-laws but this does not mean that the bye-laws or the agreement have statutory force.
The Minhas Case
32. The counsel for the petitioners cited B.S. Minhas v. Indian Statistical Institute, (the Minhas case) and submitted that the bye-laws have statutory force. We are afraid, the facts of the Minhas case are different than the facts here; it is not applicable.
33. The Indian Statistical Institute (I.S.I.) is a society registered under the Societies Registration Act. It has made bye-laws. The I.S.I, made an appointment contrary to its bye-laws and this appointment was challenged in the Minhas case. The Supreme Court held that the I.S.I, is the State within the meaning of Article 12 of the Constitution and the bye-laws are binding upon the I.S.I.
34. The bye-laws of a body that is State within the meaning of Article 12 of the Constitution are binding upon it in view of Article 14 of the Constitution. The bye-laws framed by the Board are binding upon it. In case the Board acts contrary to it or takes no action for breach of its bye-laws then a writ petition is maintainable against the Board but this does not mean that the bye-laws are statutory so far as schools affiliated to the Board are concerned.
35. In this case, the facts are entirely different. Here the service of any employee of the Board is not being terminated. Any employee of the Board is not seeking enforcement of the bye-laws. Here the petitioners--who are the employees of a private school that is not a State within the meaning of Article 12 of the Constitution--are seeking its enforcement. The D.P.S. School is merely affiliated to the Board and the terms of the bye-laws are merely a contract between the school and the petitioners: the Minhas case is not applicable.
POINT-IV to VI: WRIT AGAINST THE SCHOOL--NOT MAINTAINABLE
36. Is a writ petition maintainable for, violation of the bye-laws that do not have statutory force?
• enforcement of a private contract between the school and the teacher?
We are afraid; our answer has to be in the negative. The Full Bench of our Court in Aley Ahmad Abidi v. District Inspector of Schools, (The Aley Abidi Case) has held that:
The Committee of Management of an Intermediate College is not a statutory body. Nevertheless, a writ petition filed against it is maintainable if such petition is for enforcement of performance of any legal obligations or duties imposed on such committee by a statute.'
37. The committee of management of the D.P.S. School is recognised by the Board but it is neither a statutory body nor a State within the meaning of Article 12. The legal obligation or duty on the D.P.S. School is neither imposed by any statute nor by any statutory provision : it has been imposed by the affiliation bye-laws and agreement which is a contract between the parties and non-statutory. In view of this the writ petition is not maintainable against the D.P.S. School for violation of the affiliation bye-laws.
38. The counsel for the petitioners submits that:
The Aley Abidi case is no longer good law.
• Education upto age of 14 years is a fundamental right under Article 21A of the Constitution.
• The writ jurisdiction has been expanded and a writ petition is maintainable against the School as they perform public functions, • Unaided recognised institutions are discharging function as the instrumentality of the State and have to be governed by the principles of fair play.
• A writ petition--rather than the suit--is the right remedy.
39. The counsel for the petitioners also placed reliance on the following decisions :
(i) K. K. Krishnamacharyalu v. Venkateshwari College of Engineering, (the Krishnamacharyalu case).
(ii) Anadi Mukta Sadguru Trust v. U.R. Rudani, (the Anadi Trust case).
(iii) T.M.A. Pai Foundation v. State of Karnataka, 20O2 (8) SCC 481 : 2O02 (5) ESC 1 (SC) (the Pai Foundation case).
(iv) Central Inland Water Transport Corporation v. B.N. Ganguli, (the Central Corporation Case).
Let's consider whether the aforesaid cases, overrule the Aley Abidi case or not; and • are applicable to the facts of this case.
Article 21-A
40. Education is necessary and is fundamental in progress of civilisation; it is the education that makes the life different than the mere animal existence: if there is no education then no nation can progress. It is for this reason that:
• The Supreme Court while interpreting constitutional provisions in Unni Krishnan v. State of A.P., (the Unni Krishnan case) held that the children below the age of 14 years had a fundamental right to free education. This part of the Unni Krishnan case was upheld in the Pai Foundation case; and • Article 21A was inserted by the Constitution 86th Amendment Act as a fundamental right though this Article is yet to be enforced.
41. Article 21A provides that State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. This fundamental right mandates a duty on the State to provide free and compulsory education to the children up to the age of fourteen years. It does not mandate that unaided schools will become State within the meaning of Article 12 of the Constitution or writ petition against them is maintainable for enforcement of a non-statutory contract.
The Krishnamacharyalu Case
42. In the Krishnamacharyalu case the question was whether the petitioners, who were lab assistants, were entitled to pay on par with the Government employees or not.
43. In this case, the Government issued the instructions for grant of pay scale equivalent to the Government employees. The Supreme Court held that these instructions had statutory force. This case related to the payment of salary and not for specific performance of contract of personal service. It is in light of these facts that the writ petition was held to be maintainable. So were the facts in the Anadi Trust case.
The Anadi Trust Case
44. In the Anadi Trust case there was dispute between the teachers and the management regarding pay scales. This dispute was referred to the Chancellor. The Chancellor gave an award which was in favour of the teachers. This award was accepted by the State Government. The management refused to pay the higher pay scale and closed down the school. The teachers then, filed a writ petition for the salary of the period taught by them and post retirement benefit for the period that they had worked. This writ petition was not for the specific performance of the contract of service; it was for payment of salary for services already rendered. There was already a statutory order in favour of the teachers. It is in this light that the Supreme Court held that the writ petition to be maintainable. This is clear from the following observations of the Supreme Court :
"There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and arrears of salary payable to them. The question is whether the trust can be compelled to pay by a writ of mandamus?"
45. It is correct that in this case, the Supreme Court also observed that:
"If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants-trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship mandamus cannot be refused to the aggrieved party."
46. However, the aforesaid observations in the Anadi Trust case are general and are made in the light of the fact that there were statutory rules, regulations and statutory order in favour of the petitioners. In the case here, there is no Government or statutory rule/regulation/order as was in the Krishnamacharyalu case or the Anadi Trust case. The observations in these cases have to be confined to the facts of these cases and are not applicable here.
The Pal Foundation Case
47. The Pai Foundation case started on the question relating to scope and right of the minorities to establish and administer educational institutions under Article 29(2) and 30(1) of the Constitution of India. The case was referred to eleven Judges' bench and eleven questions were framed. Some of the questions were answered by the eleven Judges' bench and some were left to be decided by the regular bench. None of the questions related to :
Whether the unaided schools .are State within the meaning of Article 12 of the Constitution; or • Whether the contract of service between the private managed schools and the teachers are statutory; or • Whether the writ petition is maintainable for enforcement of contract of personal service.
This case is not relevant for deciding the question that is before us.
48. It is correct that the service conditions have to be fair; we have already held that-in absence of service rules Chapter VII of the affiliation bye-laws shall be deemed to be adopted by the parties and the agreement shall be deemed to be in the same format as Appendix-Ill to the affiliation bye-laws. Nevertheless this does not mean that service rules are statutory or the writ petition is maintainable for enforcement of contract of service.
The Central Corporation case
49. In the Central Corporation case two questions were involved.
Firstly, whether Central Inland Water Transport Corporation--a Government company--is a State within the meaning of Article 12 of the Constitution or not. It was held that it is 'State' within the meaning of Article 12 of the Constitution; and • Secondly, whether Rule 9(i) which permitted the termination of service of even a confirmed employee after three months notice was void under Section 23 of the Indian Contract Act and Article 14 of the Constitution. The Court held that the Rule 9(i) was arb ary, unreasonable and violative of Article 14 of the Constitution.
50. The writ petition in the Central Corporation case was against a body that was State within the meaning of Article 12 of the Constitution for violation of Article 12; it is in this light the Supreme Court: held that writ petition was efficacious remedy. In the case here neither the services have been terminated by a body that is a State within the meaning of Article 12 nor has any rule (or bye-law) been challenged. It is correct that in the Central Corporation case there are observations that reinstatement cannot be decreed in a suit and only a writ petition is the appropriate remedy. However, this observation is merely casual one: this point was not involved in the Central Corporation case and nothing turns upon it.
51. The rights and obligations are determined under statute law or by common law. Article 226 merely provides a remedy for enforcement of these rights. It does not confer any right itself--except, perhaps, the right to move the Court. Indeed M.C. Seetalvad in his Hamyln law lecturers The Common Law in India', (at page 207) remarks, "Having included a Bill of Rights in the Constitution the Constitution makers had necessarily to provide remedies for the enforcement of these rights. They also envisaged a welfare state with its inevitable accompaniment of a mass of parliamentary and subordinate legislation which would involve constant interference with the normal activities of the citizen. It was, therefore, essential to provide procedures and remedies which would enable the citizen to approach the Courts and obtain speedy and effective redress against interference with his fundamental rights or an unconstitutional enactment or unwarranted administrative action.
These remedies are to be found in Article 226 and Article 32 of the Constitution. Under Article 226 the High Courts have jurisdiction throughout the territories subordinate to them to issue to any person or authority, including in appropriate cases any Government, "directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them", not only for the enforcement of the fundamental rights but also "for any other purpose." Almost in identical words a similar jurisdiction has been conferred by Article 32 on the Supreme Court of India but this jurisdiction is restricted to cases of invasion of fundamental rights."
52. In case the suit for reinstatement is not maintainable then a writ petition is also not maintainable. Nevertheless, we would like to clarify that in certain circumstances, the writ is more efficacious or may be only remedy: especially when, Validity of any statutory Act/rules/bye-law is challenged; or • Fundamental rights are breached; or • Finality is attached to the orders making them immune from purview of the Civil Courts.
In the Central Corporation case validity of a rule was challenged; it is for this reasons the Supreme Court held that the writ is more efficacious remedy. This case is not an authority for the proposition that for reinstatement only writ is maintainable.
53. More than hundred years ago Lord Halsbury in Quirm v. Leatham, 1901 AC 495:1900-1903 All England Reports 1) had said, "[E]very judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found.... [A] case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it such a mode of reasoning assumes that the law is necessarily a logical code whereas every lawyer must acknowledge that law is not always logical at all".
54. The Krishriamacharyalu case, or the Anadi Trust case or the Pai Foundation case, or the Central Corporation case are not authority for the proposition that:
The privately managed schools are State within the meaning of Article 12 of the Constitution; or In absence of any statutory obligation, a writ petition or a suit is maintainable for specific performance of a contract of personal service.
The Aley Abidi case is still good law. Does it mean that the petitioners are not entitled to any relief from this Court and their writ petition is liable to be dismissed?
POINT-VI : WRIT AGAINST THE BOARD--MAINTAINABLE
55. The Board is the State within the meaning of Article 12 of the Constitution. The service rules prescribed by the affiliation bye-laws may, not have statutory force; or be a private contract between the petitioners and the D.P.S. School, Yet the affiliation bye-laws are binding upon the Board. The Board can neither act contrary to it nor can it ignore them. Chapter V of the bye-law prescribes the grounds on which affiliation of a school may be withdrawn. These grounds include, Disregard of rules and conditions of affiliation even after receiving warning letters;
Absence of approved terms of conditions of service or frequent dismissal of teachers from service.
56. Apart from the grounds mentioned in Chapter V of the Affiliation bye-laws, the Board can always dis-affiliate any school if that school does not follow the bye-laws; after all the Board has framed the bye-laws to be followed and not merely as a show piece. It was about half a century ago that Justice Frankfurter in Vitarelli v. Section, (1959) 359 US 535 at pp. 546-547 remarked :
"An executive agency must be rigorously held to the standards by which it professes its action to be judged.... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. ..this judicially evolved rule of administrative law is now firmly established and, if 1 may add, rightly so. He that takes the procedural sword shall perish with that sword."
57. A writ petition is maintainable against the Board--if the Board fails to take any action--to disaffiliate a school in cases where the school acts contrary to the bye-laws. Of course, a distinction has to be made between mandatory and directory bye-laws. And even in the case of mandatory one, the disaffiliation has to be done with caution; it may affect the future of the students studying in a school. We wish to clarify here that 'Service Rules for Employees' in Chapter VII are for good administration and are mandatory. Their non-observance will result into disaffiliation; of course after opportunity to the school.
Reasons for termination--Petitioners 1 to 3
58. The D.P.S. School has not framed any Service Rules. In such an event, the bye-laws in Chapter VII of the affiliation bye-laws shall be deemed to be adopted by the schools as service rules and agreement shall be deemed to be in the same format as Appendix-Ill to the affiliation bye-laws (See Point III subheading 'Service Rules Required to be Framed: Bye-laws--Adopted as Service Rules').
59. Bye-laws 44 to 47 in Chapter VII provide for penalties and procedure for imposing them. They provide a detailed procedure as to when an employee/teacher can be removed for misconduct. Bye-law No. 49 is titled as 'Disciplinary Committee' and provides for an appeal against the order of the disciplinary authority. Bye-laws in Chapter-VII and Appendix-Ill to the affiliation bye-laws clarify that the teachers/employees can be removed, only for the misconduct after completing inquiry conducted by the school; or • in case of abolition of the post, after giving three months' notice or salary of three months in lie thereof.
Let's consider if the services of the petitioners-1 to 3 has been terminated for misconduct or on abolition of the post.
60. The termination orders are similarly worded. They state that :
The services of petitioners are no longer required.
• Their services are being terminated in terms of the appointment.
• They are being paid three months salary in lieu of the notice.
61. The petitioners in different paragraphs of the writ petition have alleged that their work and conduct was good and their services have been terminated without any reason, opportunity, and inquiry. They have also alleged that it is wrongly mentioned that the services are not required as the posts on which the petitioners 1 to 3 were working have been advertised in Hindustan Times on 30th May, 2000.
62. The D.P.S. School has filed a counter-affidavit. It is not disputed that:
No opportunity was afforded.
• No inquiry as contemplated under the bye-laws was held.
• The posts over which the petitioners 1 to 3 were working has been advertised and appointments over the same has been made.
63. In paragraph 32 of the counter-affidavit, the reasons for terminating the services of petitioners 1 to 3 have been indicated as follows :
The functioning of petitioners 1 to 3 was not up to the mark.
• They have acted contrary to the interest of the institution.
• They were only interested earning money from private tuition.
64. It is clear from the aforesaid facts that the services of the petitioners 1 to 3 have been terminated for misconduct and not for any abolition of any post or for the reason that their services were not required. The D.P.S. School was required to conduct an inquiry before imposing any penalty, Reasons for termination-Petitioner 4
65. The case of the petitioner No. 4 is different. In paragraph 31 of the counter-affidavit, it has been alleged that the post, of P.T. teacher was abolished in the year 2000 due to reduction of P.T. education periods and the work of the physical education is carried by two teachers. It is further alleged that the petitioner No. 4 was the junior most amongst the three P.T. teachers, hence his services were terminated.
66. The contents of paragraph 31 of the counter-affidavit have been replied in paragraphs 18 and 28 of the rejoinder affidavit. In these paragraphs it is alleged that :
It is wrong to say that the post of physical teacher has been abolished or the service of petitioner-4 has been dispensed with on account of abolition of the post.
• The number of sections in Class 6 to 10 has increased and as such it is wrong to say that the post has been abolished.
67. In case of petitioners-1 to 3, there has been advertisement for recruitment of the teachers over the posts on which they were teaching but neither there has been any advertisement nor any teacher has been appointed over the post over which petitioner-4 was employed. At the time of hearing of this case, we inquired from the counsel whether any teacher has been appointed on the post of P.T. or not. The statement at the bar was that no P.T. teacher has been appointed. The question, 'whether the service of the petitioner No. 4 has been dispensed with due to abolition of the post or for misconduct' is a disputed question of fact.
POINT-VIII :RELIEF'S--FURTHER ACTION
68. The services of petitioners 1 to 3 have been terminated for misconduct without conducting any inquiry and opportunity. It is contrary to the bye-laws as deemed to be adopted as service rules by the D.P.S. School, The affiliation of the D.P.S. School is liable to be withdrawn. The Board has not taken any action on the representation filed by the petitioners on the ground that the case is pending and was awaiting its decision. We are deciding the case; the Board should now take action.
69. In respect of petitioners 1 to 3, the Board may give notice to the D.P.S. School asking them to show cause as to why their affiliation may not be withdrawn. Unless the D.P.S. School agrees to hold an inquiry and take appropriate legal action in accordance with the bye-laws, their affiliation may be withdrawn. In case the D.P.S. School undertakes to complete the inquiry in terms of the bye-laws then the Board may, Permit the D.P.S. School to complete the inquiry, preferably within six months;
• Extend the time to complete the inquiry if circumstances so require;
• The Board may also permit the D.P.S. School to treat the petitioners 1 to 3 on suspension from the time their services were terminated till enquiry is completed.
The aggrieved party after the order shall have right to file appeal and shall have right to challenge or seek remedy before the Civil Courts.
70. There is some dispute whether service of Petitioner No. 4 was terminated on the ground of abolition of post or on the ground of misconduct. The Board may examine whether his services were terminated on the ground of abolition of post or on misconduct after affording opportunity to the D.P.S. School. In case the Board is satisfied that his services were terminated on account of abolition of post then any further action may not be taken. The petitioner No. 4 may be permitted to seek his remedy before the Civil Court. In case the Board is satisfied that the service of petitioner-4 was terminated due to misconduct then similar action as proposed for petitioners 1 to 3 may be taken.
71. In view of our finding on other points, it was not necessary on our part to decide whether there had been any breach of bye-laws or not; we could have left it to be decided by the Board. But we have decide it and we would like to explain the reason for doing so.
72. In this case, the affidavits had been exchanged and the case was listed for final hearing. More than four years had passed since filing of the writ petition and the question of breach of bye-laws was argued before us. For petitioners-1 to 3 there was also no factual dispute; for Petitioner-4, there is some factual dispute and we are leaving it to be decided by the Board or the Civil Courts. In case we had left the dispute of petitioners-1 to 3 also to be decided by the Board then we could not have indicated the procedure to be followed. This would have delayed the final decision and would have defeated the ends of justice. It is for this reason we decide it.
A Caveat
73. The D.P.S. School neither framed the service rules nor took any disciplinary proceeding. The Board did not take any action on the complaint of the petitioner; it failed to perform its duty: it is for this reason that we are issuing directions to the Board. Had the D.P.S. School framed the service rules and taken disciplinary proceeding then we would have left the parties to agitate their rights in the Civil Court.
74. In case of complaint, the Board should perform its duty after opportunity to the parties. In case it is satisfied that the proceeding under the service rules has been taken then the parties may be left to agitate their rights in the Civil Court otherwise the Board may proceed in the same way as we have indicated. In dealing with the complaint, the Board is not required to pass detailed order as a Court of law does but the information to the party should indicate that the Board has applied its mind to the complaint.
Some Suggestions :
75. There has been laxity on the part of the State Government in granting N.O.C. and on the part of the Board is granting affiliation (See Point-Ill sub-heading 'Service Rules Required to be Framed: Bye-laws--Adopted as Service Rules'). It is possible that similar laxity may be there in respect of other schools. In this light, we will like to make the following suggestions :
(i) The State Government and the Board may be careful in future. They may not grant N.O.C. and affiliation as casually as has been done in this case.
(ii) They may ensure that the Schools--where N.O.C. and the affiliation has already been granted--frame service rules and enter into agreement with the teachers in the correct format; failing which their N.O.C. may be cancelled and affiliation may be withdrawn.
(iii) The Board may intimate to the schools affiliated to it or should specifically amend the bye-laws. The intimation to the schools or the amendment may be to the effect that--
(a) the Chapter VII of the affiliation bye-laws shall be deemed to be the service rules till the service rules are framed by the schools; and
(b) the agreement between the Schools and the teachers/ employees (where State/U.T. Act does not prescribe any particular format) shall be deemed to be in the same format as Appendix-III to the affiliation bye-laws.
(iv) the Board may amend bye-laws specifically providing that the schools shall be liable to be disaffiliated in case of violation of affiliation bye-laws.
Conclusions :
76. Our conclusions are as follows :
(a) The D.P.S. School is not the State within the meaning of Article 12 of the Constitution.
(b) The Central Board of Secondary Education, (the Board) is the State within the meaning of Article 12 of the Constitution.
(c) 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/U.T. Act--shall be deemed to be in the same format as Appendix-III to the affiliation bye-laws.
(d) 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-ill of the affiliation bye-laws as held in this case--are merely private contract between the schools arid the teachers. They do not have statutory force. The writ petition is not maintainable against the school to enforce them.
(e) 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.
(f) 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.
(g) In the present case, there has been violation of the bye-laws--deemed to be adopted as service conditions--by the D.P.S. 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 D.P.S. School.
Directions :
77. In view of our conclusions the writ petition is partly allowed and the following directions are issued :
For Petitioners-1 to 3
(a) The Board may issue a show cause notice to the D.P.S. 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 D.P.S. School unless the D.P.S. 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 D.P.S. School undertakes to conduct the inquiry then the Board may--
• give reasonable time (six months) to the D.P.S. School for completing the inquiry;
• extend the time, if he need be;
• permit the D.P.S. 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 D.P.S. 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.
Petition Partly Allowed.
Endnote-1: The difference is between the judgment of Special Appeal No. 757 of 2001, Sandeep Chauhan and Ors. v. State of U.P, and Ors. decided on 11.7.2001 and Special Appeal No. 172 of 2004, Army School Kunraghat, Gorakhpur v. Smt. Shilpi Paul, decided on 16.8.2004.
Endnote-2: The following decisions were cited for the proposition whether the Board is State or not within the meaning of Article 12:
(i) Roman v. LA. Authority of India, .
(ii) Rajasthan S.E.B. v. Mohart Lal, .
(ill) Ajay Hasta v. Khalid Mujib, .
(iv) Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, .
(v) General Manager, Kisan Sahkari Chini Mills Ltd. v , Satrughan Nishad, .
[vi) Zee Telefilms Ltd. v. Union of India, .
(vii) W.P. (S) No. 1415 of 1996, Mrs. Asha Khosla.
(viii) W.P. No. 23130 of 2004 Ashok Kumar Upadhya decided on 24.9.2004.
(ix) Ashok Kumar Chawla v. Central Board of Secondary Education, Delhi, 1997 (3) ESC 2023 (All).
(x) Mrs. Harbans Kaur v. Committee of Management, 1992 Lab 1C 2070, Appendix-1 Clauses 6 and 9 relating to composition, powers and functions of the Board are as follows :
6. Composition of the Board.--The Board shall consist of the following namely--
(i) Chairman
(ii) Vice Chairman
(iii) One Representative each of the Education Departments of the Union Territories excepting Delhi which wish to avail the services of the Board,
(iv) One Representative each of the Territorial Councils of the Union Territories other than Delhi, subject in their availing of the services of the Board.
(v) Three Representatives of the Education Department of Delhi Administration, one of whom shall be an Assistant Director of Education (Women).
(vi) One Representative each of the Education Department of the Delhi Municipal Corporation and New Delhi Municipal Committee.
(vii) One Representative of the Ministry of Scientific Research and Cultural affairs conversant, with problems of Technical Education.
(viii) A Representative of the Ministry of Health conversant with problems of medical education and of health education in schools.
(ix) A Representative each of such other Ministries and Department of the Government of India as may be decided by the Controlling Authority.
(x) Two Representatives of the University of Delhi to be elected by its Academic Council.
(xi) Three Representatives of the Inter University Board.
(xii) Two Headmasters of public schools to be nominated by the Indian Public Schools conference.
(xiii) Two Representatives each of the special category of schools designated as such by the Controlling Authority who may also prescribe the method of nomination or selection.
(xiv) One Headmaster/ Principal of High and Higher Secondary Schools (other than the special schools) recognised by the Board and located in the various States (other than the Union Territories) to be elected from among themselves.
(xv) Three Principals of Higher Secondary schools in Delhi to be elected from among themselves by the Principals of Higher Secondary schools recognised by the Board at least one of who should be the Principal of a Girls school.
(xvi) One Headmaster/ Principal of a High/Higher Secondary School from each of the Union Territories (excepting Delhi) availing the services of the Board, to be nominated by the respective administration.
(xvii) Head of the Central Institute of Education, Delhi (ex-qfficio).
(xviii) One person each to represent the following professional bodies to be appointed by the Controlling Authority :
Engineering Agriculture Medicine Industry and Commerce Fine Arts Home Science (xix) Not more than four persons to be nominated by the Controlling Authority from amongst eminent educationalists or teachers of the institutions recognised by the Board whose services it may be considered necessary or desirable to secure for the Board, keeping in view the composition of the Board.
(xx) Not more than three persons to be coopted by the Board in consideration of their expert knowledge of subjects of study included in the courses prescribed by the Board.
9. Powers and functions of the Board.--The Board shall have the following powers :
(i) To conduct examinations and grant diplomas/certificates to persons who after pursuing a course of study in an institution admitted to the privileges of recognition by the Board or having fulfilled such conditions as may be laid down by the Board, have passed the examination of the Board.
(ii) To prescribe courses of instruction for examinations conducted by; the Board provided that the Board might prescribe different courses of instruction for different classes of institutions.
(iii) To admit candidates to the examinations conducted by it and prescribe the conditions for such examinations.
(iv) To recognise institutions for the purpose of its examinations provided that the Board shall not accord recognition to any institution, without the concurrence of the State Government concerned if such institution is in receipt of a regular maintenance grant-in-aid from the State Government.
Explanatory Note.--It shall be within the powers of the Board, to withdraw recognition if it is satisfied after inspection carried out under Clause (vi) that the standards of management and instruction in an institution justify withdrawal, provided that in case of a Government, institution, applying for recognition the recognition shall not foe withheld or in case the institution is already recognised the recognition, shall not he withdrawn, without prior approved of Controlling Authority.
(v) To demand and receive such fees as may be prescribed by the Regulations.
(vi) To cause an inspection to be made by such person or persons as the Board may nominate or recognised institutions or institutions applying for recognition.
(vii) To adopt measures to promote the physical and moral well being of students of recognised institutions and supervise their residence, health and discipline.
(viii) To organise and provide lectures, demonstrations, education, exhibitions and take such, other measures as are necessary to promote the standards of secondary education.
(ix) To institute and award scholarship, medals and prizes under conditions that may be prescribed and to accept endowments for the same subject to such conditions as the Board may deem fit.
ix) To make regulations for prescribing textbooks or other books of study and to arrange for publication of such textbooks.
(xi) To make regulations for imposing penalties for misconduct of students, teachers, examiners and examinees.
(xii) To prescribe qualifications for the appointment of teachers in the institutions recognised by the Board.
(xiii) To submit Government of India its view on any matter with which it is concerned or which the Government of India or any State Government or educational organisation may refer to it for its advice.
(xiv) To advise the Administration of Union Territories as to the courses of instruction and syllabi of middle school education with a view to securing coordination between middle school education and secondary education.
(xv) To acquire properties, both movable and immovable and invest the surplus funds of the Board in Government securities or in banks approved by the Controlling Authority.
(xvi) To do all such or other things as may be necessary in order to further the object of the Board as a body constituted for regulating and maintaining the standard of secondary education.
The educational institutions recognised by the Board of Higher Secondary Education Delhi shall be deemed as institution recognised by the Board.
(that Board was merged with the Central Board on 1.7.1962).