1N THE HIGH COURT OF CHHATTISGARH AT BILASPUR (CGJ W.A. No. 262[2009 (Division Bench) ‘ Smt. Kamini Bharadwaj aged about 58 years W/o S. C. Bharadwaj 'R/o Street N0. 7—13, 1/1, Maitri Nagar, Bhilai Tah. & Distt Durg (CG) APPELLANT VERSUS 1. Sri Sankara Education Society through its Secretary, Sector 10, Bhilai Tah. & Distt Durg (CG) RESPONDENTS The President, Sri Sankara Education Society Sector 10, Bhilai Tah. & Distt Durg (CG) The Principal, Sri Sankara Vidyalaya Sector 10, Bhilai Tah. & Distt Durg (CG) Central Board of Secondary Education through Chairman, Shiksha Kendra 2 Community Centre, Preet Vihar, DELHI 1 1 00 92 HIGH COURT OF CHHATTISGARH AT BILASPtiR Writ Appeal No. 262 of 2009 APPELLANT Smt. Kamini Bharadwaj W y Versus Sri Sankara Education Society and two others RESPONDENTS DB:- HON’BLE SHRI LM. OUDDUSI 8r. HON’BLE SHRI N.K. AGARWAL, JJ PRESENT :— Shri V.G. Tamaskar, Adv. for the appellant. Shri G.D. Wasvani, Govt. Adv. for the State. o RA L o R D E R (9—7~2010) 1. This writ appeal has been filed against the order dated 9-4— 2009 passed in W.P.(S) No. 275/2008 whereby learned Single Judge has dismissed the writ petition filed by the writ appellant. 2. The question involved in the case is whether the writ appellant who was a Teacher in Sri Sankara Vidyala is entitled to be retired at the age of 6O years or at the age of 58 years. 3. For the institution, affiliated to the Central Board of Secondary Education (hereinafter referred to as “CBSE"), there are bye—laws of the CBSE. The institution Sri Sankara Education Society, Durg is running an unaided institution namely Sri Sankara Vidyala. 4. In Clause 10 of the Affiliation Byealaws of CBSE, Staff and Service conditions have been given V'Vhich are quoted as underz~ “10. Staff and Service Conditions:— rf‘f (1) Besides the minimum requirement for salaries as laid down in Section 3(3)(vi), the school should have adequate teaching staff possessing the necessary qualifications laid down for various posts/subject teachers by the oar. The pupil teachers ratio should not exceed 30. Also there must be 1 1/2 teachers per section to teach various subj ects. (2) Salaly should be paid through Account Payee cheques drawn on a schedule bank, from the date of first appointment of the teachers on probation. (3) The school should have well defined conditions of service as per norms of State/U.T. Government and should issue letters of appointment to the employees at the time of joining service and should also sign a contract of service. The contract should be similar to the format given in Appendix III in these Bye-laws or in the form prescribed by the State / U.T. Government in case the act of the State/U.T. provides so. The period of probation should normally be one year extendable for another year. In case the management is not satisfied with the performance, the same should be brought to the notice of the employees concerned in writing. Probation should not be extended beyond two years and the Management should arrive at a decision to confirm the teacher or not before the end of the probationary period. (4) The School should have Contributory Provident Fund and Gratuity or Pension, Gratuity and General Provident Fund as retirement benefits. These schemes should be as per Government rules of the State/ Centre. In addition, it will also consider providing other welfare measures like free children education, leave travel concession, M“ medical benefits, leave encashment etc. Normally a teacher should be engaged as a whole timeemployee except in special cases where work load does not justify. a whole-time teacher. No (5) Bd Wm Q 3 J teacher, teachmg the Secondary, Semor Secondary class shall be required to teach more than 3%: of the total period in a week. The number of students in the class should not be very large. The optimum number in a section of a class is 40. (7) Every school steps to provide should take reorientation to all its teaching staff, at least once in five years. Such orientation may be organized by the school itself or in collaboration with other schools or by the State or Regional Institutions or by the Board or by a National Agency. he Management of the schools shall not retain the original degree/diploma/certificates of the teachers and other employees of the school with taken for verification shall be returned at the earliest after verification. Photostat copies may be obtained from the employees and kept in their personal files.” (8) them. The original certificates etc. It is mentioned in Clause 13 of the Bye—laws that :- The affiliated schools shall be open to inspection by the Inspection Committee deputed by the Board or the education department of the State/U.T. in which it is situated. (2) (1) yr” (3) The school shall supply information and returns called for by the Board/State or Central Government within the prescribed time given for its furnishing to the authority concerned. The building and furniture of affiliated institutions shall be placed at the disposal of the Board for the conduct of any of its examinations and spot evaluation free of charge and the management and T 4 I Principal shall cooperate with the Board in the conduct of examination and evaluation of scripts by providing teachers. (4) The school shall maintain records of attendance of all students in Secondary/Senior Secondary classes for purposes of admission to the Board’s examinations. The entries in these registers shall be properly checked at the end of each session and signed. The attendance registers shall be open to inspection by the officers of the Board/ Inspection Committee. (5) The school shall arrange the medical check—up of the students at least once a year and keep a proper record of the same. (6) The school shall take steps to ‘see that value education with particular emphasis on National Integration is imparted to students through teaching various subjects and activities in the school curriculum; (7) An institution affiliated to the Board shall not in general send candidates for examination of any other Board/UniverSity. It shall prepare candidates for the Secondary and Senior Secondary examinations of the CBSE only. The general principle which may be followed is that affiliation for classes higher than Senior Secondary may be allowed with another University but for lower classes i.e. for Secondary classes this should not generally be allowed. The affiliation of vocational course may be done as per the requirements of the institutions offering them. Chapter VII deals with service rules for employees. In clause 30 therof, it has been provided that :— (1) Every employee shall retire from service on attaining the age of superannuation as per corresponding categories of employees of aided / unaided schools of the State/UT. concerned. The Managing Committee may grant extension as per rules of State/ UT if the employee has no mental or physical disabilities and his/her services are beneficial to the Institution. (3) The Board will be informed of such extension by the SMC. .Pursuant to the above provision, the Board has issued certificate on 5—11—1985 fixing the age of superannuation of Teachers as 6O years Which is applicable to unaided as well as aided institutions. .The institution is bound by the affiliation conditions and cannot go beyond it. Therefore, the writ appellant should not have been retired at the age of 58 years instead of 6O years. . Learned counsel for the respondents has raised an objection that the writ petition was not maintainable as the respondent/ institution is an unaided institution and does not come within the scope of Article 12 of the Constitution of India. . In the considered opinion of this Court, under Article 226 of the Constitution of India, it has been provided that every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certioran', or any ,of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. Therefore, it is not necessary that the institution should come Within the scope of Article 12 of the Constitution only then the High Court can exercise the power 10. to lssue wr1ts It can exerc1se the pdwér when it fels tha there ls v101at10n of statutory provisions or discrimination by the bye laws of the CBSE and on those conditions only, the y institution Therefore the institution which 1s bound by CBSE has granted affiliation and the institution conducts examinations, issues certificates of CBSE after declaration of results by CBSE like the other Government aided or unaided institution affiliated to the CBSE, thus, there cannot be any discrimination between the aided or unaided or Government institution in respect of the conditions imposed by the CBSE with regard to those institutions whi h are affiliated to CBSE in respect of maintenance as well as employment. . The General rule is that a writ would not be issued against a private body. But to this general rule, the followmg exceptions have been introduced by judicial gloss: where the institution is governed by a statute which imposes legal duties upon it; where the institution is ‘State’ within the meaning of Article 12 of the Constitution and where even though the institution is not ‘State’ within the purview of Article 12 of the Constitution, it performs some public function, whether statutory or other wise. One of the fundamental principles in regard to the issuing of a writ of certiorari is, that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expreSSion JudiCial acts includes the exercise of quasi- judiCial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. The supervision of the superior court exercised through writs of certiorari goes on two points. One is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. These two heads normally cover all the grounds on which a writ of certiorari could be demanded. (T.C. Basappa v. T. Nagappa and another, AIR 1954 SC 440). / e t h issued against an executive authity, the High Courts have per t issue in a fit case an orr prohibiting an executive authority from acting without jurisdictio Where such action of an execuve authory acing thout ursdiction subjects or s liely to sbject a person to lengthy proceedings and unnecessary harassmen te Hgh Courts l ssu In View of above, we are of the opinion that the action of the respondent / intitution retring the writ appellant a the i dt i i itin i t l 1d impg 9 5 2 Si 1 titi o rit i 6 ’ *rxav ‘y _ Sd/— I.M.Quddusi Judge Sd/- i N.K. Agrawal Judge t 11. Though the writ of prohibition or certiorari will ot be or ow o de n ti lt t Wi Ji i k u t h i Wil ie appropate orders or directions to prevent such consequences (Calcutta Discount Co. Ltd. v. Income—tax Officer, Companies District I, Calcutta and another, AIR 1961 SC 372). 12‘ s i t age of 58 years was aganst the coniions mposed by the CBSE to Which it is affilated and thus there is discrimnao Hence we allow ths wri appea set ase the uned order dated 009 passed by learned ngle Judge n Writ Peon (S) N 275/2008 and direct that the w appellant shall be treated to be retred at the age of 0 years and shall be ven all conseqential benes. l3. No order as to costs. ri gi u fit i