Y.Doss v. Padma Seshadri Bala Bhavan Senior Secondary School 17, Thirumalai Pillai Road T.Nagar, Chennai-600 017

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.1.2009CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.21898 of 2004 Y.Doss .. Petitioner vs. Padma Seshadri Bala Bhavan Senior Secondary School17, Thirumalai Pillai RoadT.Nagar, Chennai-600 017 .. RespondentThis writ petition is filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of declaration that the actionof the respondent in retiring the petitioner before completion of 60years of age is illegal, contrary to 30 of the Central Board ofSecondary Education Affiliation Bye-laws, violative of Article 14 and 16of the Constitution of India and consequently direct the respondent tocontinue the petitioner in service till he attains the age of 60 yearswith all benefits. For petitioner : Mr.S.Vaidyanathan For Respondents : Mr.T.T.RavichandranO R D E RHeard Mr.S.Vaidyanathan, the learned counsel appearing for thepetitioner and Mr.T.T.Ravichandran, the learned counsel appearing forthe respondent.2. The facts, in a nutshell, are as follows:The petitioner was working as a Watchman in the respondent School,which is affiliated to the Central Board of Secondary Education, NewDelhi. The petitioner had rendered more than 14 years of service, havingjoined in the service of the respondent School in the year, 1990, as aclass-IV employee. The respondent School is affiliated to the CentralBoard of Secondary Education, New Delhi, in accordance with theAffiliation Bye-laws of the Central Board of Secondary Education. Inaccordance with the said Bye-laws, the petitioner is entitled tocontinue in service upto the age of 60 years. Chapter VII of the Bye-lawdeals with the service rules of the employees of the affiliated https://hcservices.ecourts.gov.in/hcservices/ Institutions. As per clause No.25, the Selection Committee, consistingof the Head of the Institution and a nominee of the School ManagingCommittee, can recruit and appoint class-IV staff. Clause 25 of the Bye-laws provides the procedures for the appointment of the employees andthe recruitment of teachers and other staff. Clause 30 relates to theconditions regarding the retirement of the employees of the affiliatedInstitutions. 3. Though the respondent School is an autonomous body, it is subjectto the terms and conditions prescribed in the Affiliation Bye-laws, asit is an Institution affiliated to the Central Board of SecondaryEducation, New Delhi, under the said Bye-laws. Accordingly, the salaryand the other allowances of the petitioner should be on par with thecorresponding categories of the employees in the State GovernmentSchools. Similarly, the age of retirement of the petitioner should alsobe the same as that of the Government servants, who are similarlyplaced. Therefore, the action of the respondent School in retiring thepetitioner from service, on his attaining the age of 58 years, isarbitrary, illegal, contrary to the Affiliation Bye-laws of the CentralBoard of Secondary Education, as well as the relevant provisionsenshrined in the Constitution of India. In such circumstances, thepetitioner has preferred the present writ petition, under Article 226 ofthe Constitution of India. 4. No counter affidavit has been filed on behalf of the respondent.5. The learned counsel appearing on behalf of the petitioner hadcontended that as per the Bye-laws and the norms adopted by therespondent School to follow the Government Rules and Regulations, withregard to the age of retirement of its employees, the petitioner cannotbe retired on his completion of 58 years of age, as the age ofretirement of class-IV employees of the State Government is 60 years, asper Rule 56(1) of the Fundamental Rules governing the service conditionsof the Government Servants. Further, the age of retirement of thepetitioner is to be construed to be 60 years of age, on par with theGovernment servants, as per the Fundamental Rules applicable to them. Asit has become a service condition relating to the petitioner, it cannotbe altered without a notice being issued, under Section 9A of theIndustrial Disputes Act, 1947. Therefore, the action of the Managementof the respondent School, in retiring the petitioner at the age of 58years, cannot be sustained in the eye of law. 6. The learned counsel appearing on behalf of the petitioner hadalso contended that the Central Board of Secondary Education, New Delhi,had issued a notification No.CBSE/AFF/19/2004/23322-30567, dated12.10.2004, in exercise of the powers conferred by Clause 2 of Rule 1,under Chapter 1 of the Affiliation Bye-laws of the Board, amendingclause 30 of the Bye-laws, with effect from 18.6.2004. After the saidamendment, Clause 30.1 of Chapter VII of the Affiliation Bye-laws readsas follows: https://hcservices.ecourts.gov.in/hcservices/ "Every employee including Head of Institution shall retire fromservice on attaining the age of 60. However, if the age ofsuperannuation falls during the academic session, the concerned employeewill retire at the end of the academic session.Provided further that if such employee is arecipient of National/State/CBSE Teachers Award, hemay be considered for a further extension of servicefor two years after attaining the age ofsuperannuation provided he is medically fit and isprepared to serve the school. The school ManagingCommittee after considering such case of extension ofservice, shall forward the details to the Board. -Amendment."7. It has also been submitted that the amended Rule 3.3 (C)(iv) ofChapter II states that the Board reserves the right to withdraw thePermanent Affiliation granted to a School, in case of violation of theRules or the non-fulfillment of the essential conditions laid down bythe Board. Since the Affiliation Bye-laws of the Central Board ofSecondary Education has statutory force, even though it is contractualin nature, it is binding on the respondent School and therefore, anyviolation of the conditions prescribed in the Affiliation Bye-laws couldbe implemented by way of a direction issued by this Court, under Article226 of the Constitution of India. 8. The learned counsel appearing on behalf of the petitioner hadalso contended that Clauses 8 and 9 of Schedule IV to the IndustrialDisputes Act, 1947, make it mandatory for the respondent Institution tofollow and to implement certain conditions of service, with regard toits employees. Since such statutory conditions have been violated by therespondent School, a direction could be issued by this Court to therespondent School, to implement such mandatory conditions of service,with regard to its employees. 9. The learned counsel appearing for the petitioner had alsocontended that the Management of the respondent School had issued acommunication to the petitioner, dated 5.7.2004, stating that thepetitioner was due to retire, on 6.8.2004, on his completion of 58 yearsof age. Since the amended Bye-laws of the Central Board of SecondaryEducation had been given effect to from 18.6.2004, prescribing the ageof retirement of the employees of the affiliated Institutions, as 60years, the petitioner would also get the benefit of being continued inservice till he attains the age of 60 years. 10. The learned counsel appearing for the petitioner had alsocontended that when the petitioner had signed the Circular of thepetitioner Management, dated 18.4.2000, the age of retirement of thepetitioner was only 58 years. However, the age of retirement had beenincreased to 60 years by way of an amendment of the Bye-laws, with https://hcservices.ecourts.gov.in/hcservices/ effect from 18.6.2004, by a notification, dated 12.10.2004, issued bythe Central Board of the Secondary Education, New Delhi. Since the Bye-laws had been given retrospective operation, the benefit of the saidBye-laws, increasing the age of retirement of an employee of anAffiliated Institution, would also be applicable to the petitioner.Therefore, the respondent School is bound to implement the conditions ofservice prescribed under the said Bye-laws. 11. Per contra, the learned counsel appearing for the respondentSchool had contended that the Affiliation Bye-laws of the Central Boardof Secondary Education, New Delhi, would not be binding on therespondent School, as it does not have the binding force of law. Even ifit is said to be binding on the respondent School, it would not vest anyright in the petitioner, retrospectively, by way of increasing hisretirement age to 60 years. Further, the writ petition, filed underArticle 226 of the Constitution of India, cannot be maintained against aprivate, unaided School, such as the respondent School. Further, thepetitioner has not been in a position to show the source from which theAffiliation Bye-laws have emanated and as to how they derive theirbinding nature. Since the Bye-laws cannot be said to be a law, it wouldnot have any biding force as it could only be taken to be a contract, asadmitted by the learned counsel for the petitioner and therefore, itcannot be enforced against the respondent School, by invoking thejurisdiction of this Court, under Article 226 of the Constitution ofIndia. 12. The learned counsel appearing for the respondent had alsocontended that the petitioner cannot seek for a direction from thisCourt against the Central Board of Secondary Education, to enforce itsBye-laws against the respondent School, since the said Board is not aparty in the present writ petition. 13. The learned counsel appearing for the petitioner had relied onthe following decisions in support of his contentions.13.1. In DUNLOP INDIA LIMITED Vs. THEIR WORKMEN, (1972 L.L.J. VOL.II1) the Supreme Court had held that the conclusions of the Tribunal thatthe workman is entitled to continue in service till he attains the ageof 60 years, could be supported since the age of retirement of thecompany staff employed in Bombay is 60 years and that there were norules, regulations, binding agreements or standing orders, regarding theage of superannuation of its employees, to the contrary. 13.2. In JOHN PAULRAJ, A.P. Vs. CENTRAL BOARD OF SECONDARY EDUCATION(1999 WRIT L.R.23), a Division Bench of this Court had held that a writwould lie against an Unaided Private Educational Institution, if anelement of Public interest and a corresponding public duty is involvedin the proceedings sought to be challenged in such a writ petition. https://hcservices.ecourts.gov.in/hcservices/ Relying on the said decision, the learned counsel appearing for thepetitioner had submitted that in the present case, the Affiliation Bye-laws of the Central Board of Secondary Education is of a binding natureand it casts a mandatory obligation on the respondent School to complywith the terms and conditions of service prescribed therein. 13.3. In A.JOHNSON Vs. DIRECTOR OF SCHOOL. EDN. (2004 (3)L.L.N.333), this Court had held that the termination of the service of ateacher of a minority educational institution could be questioned by awrit petition, if the order had been passed without evidence or if it isof a perverse nature or if the punishment imposed is arbitrary,malafide, capricious or if the punishment imposed is shockinglydisproportionate to the allegations levelled against the person on whomthe punishment is imposed. 13.4. In K.KRISHNAMACHARYULU Vs. SRI VENKATESWARA HINDU COLLEGE OFENGINEERING ((1997) 3 SCC 571), with regard to the case of certainemployees of a non-aided private educational institution, seeking parityin pay scales with the employees of the Government Institution, theSupreme Court had held that the employees had an enforceable right asthere was an element of public interest due to the fact that there is aright to their education. 14. Per contra, the learned counsel appearing for the respondentSchool had relied on the following decisions in support of hiscontentions:14.1. In B.BHARAT KUMAR AND OTHERS Vs. OSMANIA UNIVERSITY AND OTHERS((2007) (6) SCALE 608), the Supreme Court had held that when the schemeinitiated by the University Grants Commission, giving the discretion tothe State Government to accept or not to a accept part of the scheme, itwould be perfectly within the powers of the State Government not toaccept the suggestions made by the scheme to increase the age ofsupperannuation, or where the State Government accepts a part of thescheme, it is not necessary that the entire scheme had to be accepted bythe State Government. Therefore, the plea that the State Government mustimplement the recommendations of the scheme initiated by the UniversityGrants Commission was untenable. 14.2. Similarly, in T.P.GEORGE Vs. STATE OF KERALA (1992 Supp.(3)SCC 191), the Supreme Court had held that the University GrantsCommission Scheme fixing 60 years as the age of supperannuation forteachers of private or affiliated colleges was not binding on the StateGovernment or the universities functioning under the relevant statues inthe State. It is not for the Court of law to prescribe the correct ageof retirement as it is a policy function requiring considerableexpertise which can properly be done, either by the State Government orthe State legislature or by the Universities concerned. 14.3. In C.I.T. Vs. BAZPUR CO-OP. SUGAR FACTORY LTD., ((1988) 3 SCC https://hcservices.ecourts.gov.in/hcservices/ 553), the Supreme Court had held that there was no power for theCooperative Societies to make bye-laws with retrospective effect inrespect of their business and therefore, the amendment made by theSociety will only have prospective effect. 14.4. In I.T.O., ALLEPPY Vs. M.C.PONNOOSE (1969 (2) SCC 351), theSupreme Court had held that the Parliament can delegate its legislativepowers within the recognised limits. Where any rule or regulation ismade by any person or authority to whom such powers have been delegatedby the Legislature it may or may not be possible to make the same so asto give retrospective operation. It will depend on the language employedin the statutory provision which may, in express terms or by necessaryimplication, empower the authority concerned to make a rule orregulation with retrospective effect. But where no such language is tobe found it has been held by the Courts that the person or authorityexercising subordinate legislative functions cannot make a rule,regulation or bye-law which can operate with retrospective effect.14.5. In M.K.GANDHI AND ORS Vs. DIRECTOR OF EDUCATION (SECONDARY)AND ORS. (2005 (4) ESC 2265), a Full Bench of the Allahabad High Courthad held that the bye-laws of the Central Board of Secondary Educationis not having statutory force and that a writ petition is notmaintainable against an Unaided recognised School. 15. In view of the submissions made by the learned counselsappearing on behalf of the petitioner, as well as the respondent and ona perusal of the records available and on considering the decisionscited, this Court is of the considered view that the reliefs sought forby the petitioner, in the present writ petition, cannot be granted bythis Court. 16. From the records available, it is clear that the petitioner hadacknowledged the fact that he was due to retire from service, on hisattaining the age of superannuation, at the age of 58 years. Even if itcould be said, as claimed by the petitioner, that the respondent schoolis bound by the Affiliation Bye-laws of the Central Board of SecondaryEducation, it would not be appropriate for this Court to enforce thesame, by invoking its powers, under Article 226 of the Constitution ofIndia, except in extraordinary situations or in situations where thiscourt finds that a public duty is to be enforced. 17. In the present case, no such situation is found to have arisento invoke the writ jurisdiction of this Court. Further, efficaciousalternative remedies are available to the petitioner to enforce hisrights, if any, by way of civil proceedings or by taking re-course tothe remedies provided under the Industrial laws, whichever may beappropriate. Further, if it is found that the respondent School hadinfringed some of the provisions of the Affiliation Bye-laws or it hadcommitted default due to the non-fulfillment of the essential conditions https://hcservices.ecourts.gov.in/hcservices/ laid down by the central Board of secondary education, New Delhi, whilegranting affiliation to the respondent School, it may be open to thepetitioner to bring it to the knowledge of the said Board for necessaryaction to be initiated against the respondent School, in accordance withthe Bye-laws. The Central Board of Secondary Education, New Delhi, hasnot been made a party to the present writ petition and therefore, thisCourt has not had the benefit of its views in deciding the issues raisedby the petitioner, with regard to the binding nature of the AffiliationBye-laws and in respect of the specific remedies available to thepetitioner to enforce the said Bye-laws. 18. Even though it may be open to the petitioner to contend that thewrit petition may be maintainable against a private unaided school, suchas the respondent school, the rights sought to be enforced by thepetitioner should fall under the realm of 'public duty', which is soughtto be enforced. However, in the present case, the petitioner has notshown sufficient cause or reason for this Court to be persuaded toenforce such a right, said to be vested with the petitioner. In suchview of the matter, the writ petition is liable to be dismissed. Hence,it stands dismissed. Consequently, connected W.P.M.P.No.724 of 2008 isclosed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.lanTo:Padma Seshadri Bala Bhavan Senior Secondary School17, Thirumalai Pillai RoadT.Nagar, Chennai-600 017+ 1 CC to Mr.S.Vaidyanathan, Advocate SR.NO.3420W.P.No.21898 of 2004 GG(CO)EM/3.2.09