Disciplinary Action Against CBSE School Teacher Cannot Be Challenged In Writ Petition : Kerala HC [Read Judgment]
A judicial review of the action challenged by a party can be had by resort to the writ jurisdiction only if there is a public law element and not to enforce a contract of personal service, said the Court.
A division bench of High Court of Kerala has answered a reference to hold that disciplinary action against a teacher in a school affiliated to the Central Board of Secondary Education(CBSE) cannot be challenged in a writ petition under Article 226 of the Constitution of India.
Holding thus, the bench of Justices V Chitambaresh and Narayana Pisharadai overruled two single bench decisions - Bincy Raj vs CBSE & Chitra v State of Kerala- which had held that the writ court can review disciplinary action against a CBSE teacher. These decisions had held writ to be maintainable on the ground that education amounted to discharge of a public function. There were single bench decisions which conflicted with this proposition, occasioning reference to the division bench.
The division bench at the outset noted that CBSE was not a statutory authority, but was a society registered under the Societies Registration Act. The application of the Right to Education Act and the Rules made under it is with regard to recognition of the school and its course, without touching upon service conditions.Though Rule 19 of the RTE Rules framed by the Kerala Government provides for grievance redressal of teachers, service matters, orders of suspension from service and all penalties under disciplinary proceedings initiated by the School Management are specifically excluded from its purview, noted the bench.
It further noted that service rules as per Section 24(2) of the RTE Act are yet to be framed.The service rules framed as per the bye-laws of CBSE are in the realm of contract, without any statutory flavour.
"A scanning of the provisions of the R.C.E.Act as well as the R.C.E.Rules and the absence of the service rules framed indicate that disciplinary proceedings are out of bounds for the writ court", said the judgment authored by Justice Chitambaresh.
Writ not maintainable to enforce contract of personal service
While the bench acknowledged that a school discharges public function and is therefore an "authority" amenable to writ jurisdiction under Article 226 of the Constitution of India, it said that all actions of the authority cannot be reviewed under writ jurisdiction.
" a judicial review of the action challenged by a party can be had by resort to the writ jurisdiction only if there is a public law element and not to enforce a contract of personal service", observed the court referring to the recent SC judgment in K.K.Saksena v. International Commission on Irrigation and Drainage and others(2015) 4 SCC 670.
The bench noted that the SC had held that a contract of personal service can be enforced only in three scenarios :
- when the employee is a public servant working under the Union of India
- when such an employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India
- when such an employee is 'workmen' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act
Based on this, the bench observed :
"The teacher of a school affiliated to CBSE is neither a public servant working under the Union of India or State nor an employee employed by a body which is a State within Article 12 of the Constitution of India. The teacher is also not a 'workman' as defined in the Industrial Disputes Act, 1947 who alone can invoke the machinery under the said Act challenging termination of his service. The contract of personal service cannot be enforced in other circumstances even against an authority discharging public function under Article 226 of the Constitution of India".
The SC decision in Ramesh Ahluwalia v. State of Punjab( (2012) 12 SCC 331), which had observed that writ jurisdiction could be invoked in respect of disciplinary proceedings against a CBSE school teacher, was distinguished by the bench. The bench observed that the SC in that decision ultimately directed the petitioner in that case to file appeal before the Education Tribunal.
Last week, the very same bench had answered another reference to hold that authorities under Kerala Education Rules have no disciplinary control over CBSE school teachers.