CBSE's Statutory Position as per the recent Supreme Court Judgment
CBSE or State or Centre or Whom to follow and What to follow, a question and a struggle which all private schools are facing
Who is the appropriate authority of a Private School in India?
Recently, The Supreme Court was dealing with the case relating to a private unaided minority educational institution and its disciplinary committee, wherein, the Madhya Pradesh High Court had held that a writ petition filed by an employee of a private unaided minority educational institution seeking to challenge his termination from service was maintainable in law.
In Civil Appeal No. 5789 of 2022 before the Supreme Court, the educational institution St, Mary's Education Society raised the following issues:
i. Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution?
ii. Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution?
In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?
Analysis of Supreme Court:
Whether A Writ Petition Under Article 226 Of The Constitution Of India Is Maintainable Against A Private Unaided Minority Institution?
The CBSE is only a Society registered under the Societies Registration Act, 1860 and the school affiliated to it is not a creature of the statute and hence not a statutory body. The school is affiliated to the CBSE for the sake of convenience, namely, for the purpose of recognition and syllabus or the courses of study and the provisions of the Act 2009 and the rules framed thereunder.
In [Km. Regina Vs St. Aloysins High Elementary School, & Anr, (1972) 4 SCC 188 : AIR 1971 SC 1920], Supreme Court held that the mere fact that an institution is recognized by an authority, does not itself create an enforceable right to an aggrieved party against the Management by a teacher on the ground of breach or noncompliance of any of the Rules which was part of terms of the recognition. It was observed as under:
"The Rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these rules upon the management. But the enforcement of such rules is a matter between the Government and the management, and a third party, such as teacher aggrieved by some order of the management cannot derive from the rules any enforceable right against the management on the ground of breach or non-compliance of any of the rules."
In [Km. Anita Verma Vs D. A. V. College Management Committee, Unchahar, Rai Bareilly, (1992) 1 UPLBEC 30]: ....30 where the services of a teacher were terminated, the Court held that the writ petition under Article 226 is not maintainable as the institution cannot be treated as the instrumentality of the State.
The matter was considered in detail in M/S Habans Kaur Vs. Committee of Management, Guru Teghahadur Public School, Meerut and Anr., 1992 Labour and Industrial Cases 2070 (All), wherein the services of the petitioner were terminated by the Managing Committee of the institution recognized by the C.B.S.E. It was held that the Affiliation Bye-laws framed by the C.B.S.E. has no statutory force.
The Court under Article 226 of the Constitution of India can enforce compliance of statutory provision against a Committee of Management as held in a Full Bench decision of this Court in Aley Ahmad Abdi v. District Inspector of Schools, Allahabad and Ors., AIR 1977 All. 539. The Affiliation Bye-laws of C.B.S.E. having no statutory force, the only remedy against the aggrieved person is to approach C.B.S.E. putting his grievances in relation to the violation of the Affiliation Bye-laws+ by the institution.
The Supreme Court noted that the appellant - School is a private unaided minority educational institution, which enjoys the protection guaranteed under Article 30 (1) of the Constitution of India and there is absolutely no Governmental control over the functioning and administration of the school.
The school is presently affiliated to the Central Board of Secondary Education and is thus governed by its Rules and Bye-laws, the Court noted.
CBSE itself is not a statutory body nor the regulations framed by it has any statutory force. Secondly, the mere fact that the Board grants recognition to the institutions on certain terms and conditions itself does not confer any enforceable right on any person as against the Committee of Management, the Supreme Court observed.
Inference:
1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the 64 public or a section of it and the authority to do so must be accepted by the public.
2. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of State within the expansive definition under Article 12 or it was found that the action complained of has public law element.
3. While a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions.
4. Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an
agency created by it. It is only where the removal of an employee of non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered by the court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty.
Order:
An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions.
Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether “A” or “B” is employed by school to discharge that duty.
In any case, the terms of employment of contract between a school and non¬teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education.
This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non¬teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered by the court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty.
Queries:
i. Who is the authority for private unaided school?
Ans: As CBSE has no statutory power and Section 2 (a) (ii) of Right of children to free and compulsory education Act, 2009 states that Schools other than the schools controlled and owned by Central Government have the State as its appropriate authority so for private unaided school, State is the appropriate authority for all rules and regulations.
ii. What is the power of CBSE as an affiliation board?
As per the Supreme court judgment St. Marry Education Society & Ors. Vrs. Rajendar Prasad, school is affiliated to the CBSE for the sake of convenience, namely, for the purpose of recognition and syllabus or the courses of study and the provisions of the Act 2009 and the Rules framed thereunder. However in another statement Hon’ble court stated that CBSE itself is not a statutory body nor the Regulations framed by it has any statutory force. Thus, where a teacher or non-teaching staff challenges action of Committee of Management that it has violated the terms of contract or the Rules of the Affiliation Bye-laws, the appropriate remedy of such teacher or employee is to approach the CBSE or to take such other legal remedy available under law. It is open to the CBSE to take appropriate action against the Committee of Management of the institution for withdrawal of recognition in case it finds that the Committee of Management has not performed its duties in accordance with the Affiliation Bye-laws.
Thank you
"Be Aware"
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