Mrs. Harbans Kaur vs Committee of Management, Guru Tegh Bahadur Public School and Another

P.P. Gupta, J.—The Committee of Management, Guru Tegh Bahadur Public School. Meerut, Respondent no, 1. runs a Public School, known as Guru Tegh Bahadur Public School. Meerut Cantt. Meerut (hereinafter referred to as the ''School''). It is a private unaided school. This school is affiliated to the Central Board of secondary education, New Delhi (hereinafter referred to as CBSE) and is a recognised institution.

The Petitioner, Mrs Harbans Kaur, was appointed as an Assistant Teacher in the school on 2-7-1978 to teach Primary Sections. She was confirmed as Teacher on 27-11-1981. In view of the good work and teaching experience of the Petitioner, she was appointed as Teacher in T.G. T. grade with effect from 2-4-1985 on regular basis by Respondent No. 1. All along, she discharged her duties as Teacher satisfactorily. On 1-9-1990, she was served with a letter terminating her services on the grounds that her work was unsatisfactory and that she did not possess requisite qualifications for the post She was never served with any charge-sheet and was also not afforded any opportunity to show-cause against the termination order. In the circumstances, as alleged by the Petitioner, the termination order was illegal It also cast stigma on the Petitioner. It is this termination order that has been challenged by the Petitioner in this writ petition.

The writ petition was contested by the Committee of Management, Respondent No. 1 and also by the Principal Respondent No. 1. The main contenttion of the Respondents is that the Petitioner was not qualified to hold the post of a trained Graduate teacher She was placed on probation and was never confirmed. The services of the Petitioner were purely contractual and the contract of personal service could not specifically be enforced. The maintainability of the writ petition was also challenged on the ground that Respondent No. 1 was not a statutory body. In her rejoined affidavit, the Petitioner reiterated that she was governed by the bye-laws framed by the CBSE which is a statutory body. Her services had been terminated in violation of bye-laws and so the present writ petition against the Respondents was maintainable, despite the fact that Respondent No. 1 is a private body.

I have heard the learned Counsel for both the parties and have also perused the record of the case. The main question for consideration in this case is whether the present writ petition, against the Respondents, is maintainable ? The arguments regarding the maintainability of this writ petition against the Respondents from the side of the Petitioner were three fold. Firstly, the contention was that the Committee of Management was a statutory body, secondly, that Respondents had failed to act in accordance with the statutory provisions of the bye-laws, and lastly, that the Respondents had failed to discharge public duty.

Indisputedly, the Committee of Management, Respondent No. 1, has been created in accordance with the scheme of administration formulated under Rule 6 of the Affiliation Bye-laws framed by the CBSE. This rule lays down that every affiliated school should have a scheme of management approved by the Board, and further that it should also have a school Managing committee The Management committee is, therefore, not created either by or under any statute. It does not, therefore, have its evidence to the statute. As such it is a non-statutory body An institution can be considered a statutory body if it is established that it was created under the statute and owes its existence to the statute. This is distinct from an institution which is not created by or under statute but is governed by certain statutory provisions for proper maintenance and administration of the institution The adoption of certain statutory provisions by itself is not sufficient to clothe the institution with statutory character. In the case of Aley Ahmad Abidi Vs. Dist. Inspector of Schools, Allahabad and Others, , a Full Bench decision, the Supreme Court''s decision in Vaish Degree College v. Lakshmi Narain AIR 1976 SC 888 was followed and it was held that the Committee of Management constituted in conformity with the provisions contained in Section 16-A(1) of the Intermediate Education Act is not a statutory body. In view of the decision of the Supreme Court and the Full Bench decision of this Court, the contention of the Petitioner that Respondent No. 1 is a statutory body cannot be accepted as correct.

Despite this, the Full Bench in Aley Ahmad Abidi''s case (supra) held that a writ petition filed against a Committee of Management is maintainable if such petition is for enforcement of performance of any legal obligations or duties imposed on such committee by a statute. This was the view taken in Aley Ahmad Abidi''s case following the decision of the Supreme Court in The Praga Tools Corporation Vs. Shri C.A. Imanual and Others, Basing his arguments on the decision of the Supreme Court and the Full Bench decision of this Court, the learned Counsel for the Petitioner submitted that Respondent No. I had terminated the services of the Petitioner in violation of Rule 47 of the Affiliation Bye-laws framed by the CBSE. This rule lays down that for imposing major penalty, an enquiry is to be held in accordance with the procedure laid down thereunder. Admittedly, no such enquiry was held The question for consideration is whether these bye laws have any force of law ? The learned Counsel for the Petitioner miserably failed to show any statutory prevision under which these Affiliation Bye-laws have been framed by the CBSE. Where are the roots of these bye-laws, is not known. Nothing has been mentioned in the bye-laws as to under what statute they have been framed. It cannot be presumed that these Affiliation Bye-laws have been framed under some statute and thereby they acquired force of law. The Petitioner has failed to prove that any statutory powers and duties are conferred on the Respondents and they have failed to discharge legal obligations and duties so imposed upon them by the statute creating a legal right of the Petitioner. In the circumstances, it cannot be held that the Respondents are entrusted with performance of statutory duties or. conferred with any statutory powers under these Affiliation Bye-laws. So even if the impugned termination order is not in conformity with these bye-law no writ will lie against the Respondents.

Placing reliance in the case of Kumkum Khanna and Others Vs. The Mother Acquinas and Another, , it was submitted by the learned Counsel for the Petitioner that since Respondents were discharging a public duty, not necessarily imposed by statute, the writ against them would lie. In this case the Delhi High Court issued a writ to the Principal of a private college on the ground that the Principal was conferred with powers under ordinances of the University of Delhi regarding attendance of the students and that hence the exercise of such powers was subject to the jurisdiction under Article 226 of the Constitution. It was held. "The power of the principal to enforce the requirement of two-thirds of attendance is given to her by Ordinance VII, that is, by a statutory provision. Similarly, the power to deny permission to students to appear at the examination on the ground of shortage of attendance is also a statutory power. For the same reason, the discretion of the principal give benefit to the students under clause 2 (9)(c) of Ordinance VII is also a statutory discretion The exercise of these powers and the performance of these duties is, therefore, subject to mandamus and certiorari under Article 226 of the Constitution." It was only as an obitor dicta that the High Court further observed--"Even if the office of the principal is not regarded statutory in the sense that it is created by a statute, it is a public office because the powers and duties of the principle relate to a large section of the public, namely, the students of the college. There is no private or contractual relationship between the students and the principal " Therefore, what was observed in this case was that the principal of a private schools owns a public duty towards the students, who are not governed by any contract. The case of the present Petitioner is different. The Committee of Management may owe a duty against the students, but certainly not against the teachers, whon are employed by it. As will be seen later, there is a privity of contract between the Petitioner and Respondent No. 1. Since neither Respondent No. 1 nor Respondent No. 2 owe any public duty towards the Petitioner, the writ petition filed by the Petitioner against them enforcing her contractual rights will not be maintainable.

The learned Counsel for the Petitioner has placed reliance on the case of Shankar Saran v. Vesli Inter College Azamgarh 1991 (1) UP LB EC 467. The writ was tiled against an order terminating the services of the Petitioner on the ground that the order was illegal and invalid for want of opportunity of hearing The writ was allowed and the order of termination of the services of the Petitioner was set aside. The facts of this case are. however, different In this case the Regulations framed under the U.P. Intermediate Education Act, 1921. which undoubtedly have statutory, force, were not complied with by the Committee of Management. Before terminating the services of the Petitioner, approval of the District Inspector of Schools (hereinafter referred to as the ''DIOS'') was necessary. The DIOS had not approved the termination of the Petitioner. It was, therefore, a case where the Committee of Management, entrusted with performance of statutory duties, had not followed the Regulations having the force of law. Since the writ petition filed against the Committee of Management was for enforcement of performance of legal obligations or duties imposed on it by the Regulations having the force of law, the writ was held maintainable. In the instant case, as has been stated above, the Affiliation Bye-Laws framed by the CBSE have no such statutory force Therefore, for the violation of these bye laws no writ against the Committee of Management can be issued

The case of the Petitioner is squarely covered by a decision of the Supreme Court in the case of Shri Vidya Ram Misra Vs. Managing Committee, Shri Jai Narain College, . In this case the Appellant filed a writ petition before the Lucknow Bench of this Court challenging the validity of a resolution passed by the Managing Committee of Shri Jai Narain College, Lucknow, an associated college of the Lucknow University, terminating his services and praying for issue of an appropriate writ or order quashing the resolution A learned single Judge of that Court, finding that in terminating the services, the Managing Committee acted in violation of principles of natural justice, quashed the resolution and allowed the writ petition The managing Committee appealied against the order. A Division Bench of the High Court found that the relationship between the college and the Appellant was that of master and servant and that even if the service of the Appellant has been terminated in breach of the audi alteram partem rule of natural justice, the remedy of the Appellant was to file a suit for damages and not to apply under Article 226 of the Constitution for a writ or order in the nature of certiorari and that in fact no principle of natural justice was violated by terminating the services of the Appellant. The writ petition was dismissed. In appeal the Hon''ble Supreme Court upheld the decision of the High Court holding that the Lecturer cannot have any cause of action on breach of the law but only on breach of the contract, hence he has a remedy only by way of suit for damages and not by way of writ under Article 226 of the Constitution.

In the case in hand, the facts are similar. Rule 24 (1) of the Affiliation Bye-Laws, framed by the CBSE, provides that cach school affiliated with the Board shall frame Service rules. Sub-rule (2) of it provides that a service contract will be entered with each employee as per the provision in the Education Act of the State/U.T. or as given in Appendix III, if not obligatory as per the State Education Act. These rules also provide procedures for appointments, probation, confirmation, recruitment, attendance representations, grant of leave, code of conduct, disciplinary procedure, penalties, etc. The model from of contract of service, to be executed by an employee, given in Appendix III, lays down that the service, under this agreement, will be liable to disciplianary action in accordance with the Rules and Regulations framed by the school from time to time. Only in case where the post is abolished or an employee intends to resign, Rule 29 of Affiliation Bye-Laws of the Board will apply. It may be noted that the above-bye-laws do not provide for any particular procedure for dismissal or removal of a teacher for being incorporated in the contract. Now does the model form of contract given in Appendix III lays down any particular procedure for that purpose. On the contrary the disciplinary action is to be taken in accordance with the Rules and Regulations framed by the school from time to time.

On a plain reading of these provisions, it becomes clear that the terms and conditions mentioned in the Affiliation Bye-Laws may be incorporated in the contract to be entered into between the school and the employee concerned. It does not say that the terms and conditions have any legal force, until and unless they are embodied in an agreement. To put it in other words, the terms and conditions of service mentioned in Chapter VII of the Affiliation Bye-Laws have no force of law They became terms and conditions ot service only by virtue of their being incorporated in the contract. Without the contract they have no vitality and can confer no legal rights. The terms and conditions mentioned in the Affiliation Bye-Laws have no efficacy, unless they are incorporated in a contract In absence of any statutory provisions governing the services of the employees of the school, the service of the Petitioner was purely contractual. A contract of personal service cannot be enforced specifically. Therefore, the Petitioner cannot found a cause of action on any breach of the law, but only on the breach of the contract. That being so, the Petitioner''s remedy lies elsewhere and in no case the writ is maintainable. In this view of the matter, it is quite unnecessary to go into the question whether the Petitioner was given sufficient opportunity to meet the charges against her or not.

In a very recent case of Kumari Anita Verma v. D.A.V. College, Management Committee, Unchahar, Rae Bareli 1992 (1) UP LB EC 30, the Lucknow Bench of this Court has taken a similar view. The Petitioner in that case was a teacher in the Secondary School at Unchahar, Rae, Bareli run by the D.A.V. College Management Committee, New Delhi. This school is affiliated to the CBSE and the conditions of service in the said school are governed by the Affiliation Bye-Laws framed by the CBSE. The services of the Petitioner, as Music teacher, were terminated by the Management Committee. It was held that in the absence of any statutory provision governing the employment of the Petitioner her services were purely contractual and a contract of personal service cannot be enforced specifically.

In view of the above discussions, the writ petition, filed by the Petitioner, is incompetent and not maintainable. Accordingly, the writ petition is dismissed with no order as to costs.