Subbamma ... Petitionerin W.P.No.17285 of 2009 v. Central Board of Secondary Education

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.11.2009CORAM:THE HON’BLE MR. JUSTICE K.CHANDRUW.P.Nos.17285 and 17266 of 2009 andM.P.Nos.1, 1 and 2 of 2009Subbamma ... Petitionerin W.P.No.17285 of 2009Christis Mary ... Petitionerin W.P.No.17266 of 2009Vs.1. Central Board of Secondary Education, Represented by its Secretary, PS-1-2, Institutional Area, I.P.Extn., Patparganj, Delhi – 110 092. Having its regional office at Plot No.1630A, "J" Block, 16th Main Road, Anna Nagar West, Chennai – 600 040.2. The Director General, Ordnance Factory Board, Esplanade East, Calcutta – 700 069.3. The General Manager, Heavy Vehicles Factory, Avadi, Chennai – 600 054.4. The Heavy Vehicles Factory English Medium Educational Society, Represented by its Secretary, Vijayanta Senior Secondary School, Near EME Lines, HVF Estate, Avadi, Chennai – 54.5. The Secretary, Vijayanta Senior Secondary School, H.V.F.Estate, Avadi, Chennai – 54. ... Respondents inboth WPs https://hcservices.ecourts.gov.in/hcservices/ W.P.No.17285 of 2009 :Petition under Article 226 of theConstitution of India praying for a Writ of Mandamus, forbearingthe respondents from retiring the petitioner before the end ofacademic year 2011-2012.W.P.No.17266 of 2009 :Petition under Article 226 of theConstitution of India praying for a Writ of CertiorarifiedMandamus, to call for the records on the file of the 5th respondentin proceedings No.VSSS/GENL/02/2009-10 dated 17.08.2009 and toquash the same as illegal, incompetent and without jurisdiction andfurther forbear the respondents from retiring the petitioner beforethe end of academic year 2011-2012.For Petitioner : Mr.Lakshmi NarayananFor Respondents: Mr.G.Nagarajan for R1 Mr.R.Priya kumar, ACGSCCOMMON ORDER The two petitioners who were employed as Graduate teachers inthe fifth respondent School were sought to be retired at the age of58 years on the ground that the age of retirement in respect ofteachers was only 58. 2. On the contrary, the petitioners contended that as per theAffiliation by-laws of the Central Board of Secondary Education(CBSE), the retirement age as per Rule 30 is 60 years. If the ageof superannuation fell during academic session, the concernedemployee will retire at the end of the academic session. It is onthese grounds they had prayed for continuance in their service tillthey attain 60 years and further prayed that they should be allowedto continue in service till the end of the academic year 2011-2012.3. Notice was ordered on these writ petitions.Mr.G.Nagarajan, learned counsel appearing for the first respondentstated that no relief was claimed against them. But however, hepointed out that as per Rule 24 of the Affiliation Bylaws, eachschool affiliated to the CBSE will frame Service Rules for itsemployees as per the Education Act of the respective State or UnionTerritory. If such Act makes adoption of the same obligatory,otherwise as per Service Rules given in subsequent paras. It wasalso stipulated that each school shall enter into Service Contractwith each employee as per the provisions of the Education Act, ifnot obligatory as per the State Education Act. https://hcservices.ecourts.gov.in/hcservices/

4. It is seen from the provisions of Tamil Nadu RecognisedPrivate Schools (Regulation) Act, 1973 that they have not been madeapplicable to the schools affiliated to CBSE namely, the firstrespondent. A perusal of Section 2(7)(b) of the Act defining'private school' also excludes the school established oradministered or maintained by the Central Government or the StateGovernment or any local authority. Therefore, the first portion ofthe Rule 24(1) may not apply. 5. It is also fairly admitted that there was no servicecontract entered into with each employee stipulating the age forretirement. In the absence of the same, it must be held that Rule36 of the Affiliation Bylaws will come into operation in respect ofretirement age of teachers working in CBSE schools including the fifthrespondent. 6. However, in the counter affidavit filed by the contestingrespondents, it was stated that though the School has framed Bylaws, under Rule 20(a) of the By laws and conditions of theSociety, it was the Management Committee which will have the powerto decide such matters including the appointment of the employeesand fixing their conditions of service. It was also stated that theschool has been following the service conditions in respect ofsalaries by adopting the scales of pay prescribed by the Tamil NaduState Government. Therefore, if that is accepted then all theservice conditions available to school teachers working under theTamil Nadu State Boards will also apply. In such case, thepetitioners will have to be retired at the age of 58 only. It wasalso stated that there was no Rule stipulating the continuance inservice beyond the age of superannuation. Therefore, thepetitioners case will have to be rejected on these grounds. ThisCourt is unable to agree with these submissions. 7. When an identical issue came up before this Court withreference to Matriculation School teachers, the Management of thesaid school made similar contention namely, that the teachers werebound by the contract with the Management and the Code ofRegulations applicable to Matriculation teachers will not beapplicable and that the demand for retention in service as perClause 18 of the Code of Matriculation Schools will not apply. 8. In Venkateswaran V. The Director of School Education,Madras and others reported in 1999 3 MLJ 94, this Court acceptedthe case of the teachers. In paragraphs 9 to 11 it was observed asfollows:"9. In the instant case, the petitioner being ateacher, whose employment was at the mercy of the 4th https://hcservices.ecourts.gov.in/hcservices/ respondent, was compelled to sign the terms andconditions of service, which is contrary to clause 18of the Code, which will prevail over Clause 17 of theterms and conditions of service. The terms andconditions of the agreement entered into between thepetitioner and the 4th respondent school is admittedly acontract entered into between the parties who are notequal in bargaining power. Clause 17 of the terms andconditions of services, is arbitrary and unreasonableand therefore void inasmuch as the same is contrary toClause 18 of the Code. Therefore, I am of theconsidered view that Clause 17 is not binding betweenthe parties inasmuch as the parties to the contractwere not equal in the bargaining power, which hadresulted in great disparity between the parties.Consequently, the services of the petitioner till heattained the age of 60 years has necessarily to beregularised by the respondents.10. Further more, the right to continue in service tillthe end of the academic year i.e., till 31st May, isunconditional as per Clause 18(1) of the code and,therefore, the petitioner is also entitled to for thesalary till 31.05.1998 in the light of the decision ofa Division Bench of the Court, in Sundaram V. TheSecretary C.S.I. Diocese of Madras, Madras and others,dated 6.12.1994, the teachers are entitled to continuein service till the end of the academic year and theDepartment is bound to pay the salary of the teacherswhose valid right to continue in service till the endof the academic year was denied.11. In the result, even though the petitioner waspermitted to continue in service till 18.4.1988 byvirtue of interim orders of this Court, the respondentsare directed to regularise the services of thepetitioner till 18.4.1988 and further they are directedto pay salary as per the rules till 31st May, 1988 andpass appropriate orders in this regard within threemonths from the date of receipt of copy of this order."9.Mr.Priya Kumar, learned counsel for the contestingrespondents submitted that the school would have subsequentlyappointed teachers in the place of the present teachers. Such acontention will not defeat the legal right of the petitioners. Ifemployees are restored to service by Court orders then the personappointed in their posts will have to be sent out. Therefore,this Court is not inclined to disallow the claims made by thepetitioners only on the ground that subsequent appointments havebeen made in the places of the petitioners. In this context it is https://hcservices.ecourts.gov.in/hcservices/ necessary to refer to the judgment of the Supreme Court in PunjabNational Bank Ltd v. All India Punjab National Bank EmployeesFederation and another reported in AIR 1960 SC 160, where similarcontention was rejected by the Supreme Court. 10. It is necessary to extract para 63 of the judgment whichis as follows:-"63.... As had been held by this Court in theNational Transport and General Co. Ltd. v. TheWorkmen, Civil Appeal No.312 of 1956, D/-22-1-1957(SC), however much the court may sympathise with theemployer's difficulty caused by the fact that afterthe wrongful dismissals in question he had engagedfresh hands, the court cannot "overlook the claims ofthe employees who, on the findings of the tribunalsbelow, had been wrongly dismissed". In the case ofsuch wrongful dismissal the normal rule would be thatthe employees thus wrongfully dismissed must bereinstated."The hardship in question", observed this Court, "hasbeen brought about by the precipitate action of theappellants themselves who dismissed their workmenwithout holding the usual enquiries after framing aproper charge against them. If they had proceeded inthe usual way and given a full and fair opportunityto the workmen to place their case before theenquiring authority, the result may not have been sohard".These observations are equally applicable to theconduct of the Bank in the present appeals."11. In the light of the above, the writ petitions standsallowed. No costs. Consequently, connected miscellaneous petitionsare closed. Sd/Asst.Registrar/true copy/Sub Asst.Registrarsvki https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary, Central Board of Secondary Education, PS-1-2, Institutional Area, I.P.Extn., Patparganj, Delhi – 110 092. Having its regional office at Plot No.1630A, "J" Block, 16th Main Road, Anna Nagar West, Chennai – 600 040.2.The Director General, Ordnance Factory Board, Esplanade East,Calcutta – 700 069.3.The General Manager, Heavy Vehicles Factory, Avadi, Chennai – 600 054.+ 2 ccs to Mr.V.Raghavachari, Advocate (SR 58907 & 58911)+ 1 cc to Mr.G.Nagarajan, Advocate (SR 58746)+ 2 ccs to Mr.A.Priyakumar, Advocate (SR 58687 & 58686)W.P.Nos.17285 and 17266 of 2009BK (CO)RH (19.11.09)