*THE HON’BLE SRI JUSTICE N.V. RAMANA +Writ Petition Nos. 24588, 24589, 24590, 24591, 24592 and 24593 of 2008 %Dated 30.12.2008 W.P. No. 24588 of 2008 # K. Kanakaraj, S/o K. Tukaram, aged 30 years, Occ: Project Officer, The Alpha Foundation, Panjagutta, Hyderabad, R/o H.No.2-2-128/G/110, Saibaba Colony, Opp: Vijayapuri Colony, Uppal, Hyderabad. ..... PETITIONER VERSUS $ The Institute of Chartered Financial Analysts of India (ICFAI), 52, Nagarjuna Hills, Panjagutta, Hyderabad, rep. by its Chairman and others. .....RESPONDENTS ! Counsel for Petitioner: Sri Koka Srinivasa Kumar ^ Counsel for Respondent No.3: GP for Education Counsel for Respondents 1 and 2: Sri B. Adinarayana Rao < GIST: Ø HEAD NOTE: ? Cases referred: 1. 1991 (3) ALT 335 2. 2000 (5) ALD 177 3. 2000 (5) ALT 327 (DB) 4. 1997 (1) ALD 44 5. 2003 (5) ALT 469 (DB) THE HON’BLE SRI JUSTICE N.V. RAMANA W.P. Nos. 24588, 24589, 24590, 24591, 24592 and 24593 of 2008 Common order: The petitioners state that respondent No.2, namely The Alpha Foundation, is a Department of respondent No.1, namely The Institute of Chartered Financial Analysts of India (ICFAI), which is an educational society established under the ICFAI University Act. They further state that respondent No.1-ICFAI, apart from imparting university education, also runs schools for imparting formal education to the down trodden in the name and style of “ICFAI Republic Schools” in several states, including the State of Andhra Pradesh, and that all these schools are recognized by the Government of Andhra Pradesh under the A.P. Education Act, 1982 (hereinafter referred to as ‘the Education Act’). That respondent No.2, which is a Department of respondent No.1, looks after the day-to-day management of the said schools. Respondent No.2 entered into a Memorandum of Understanding with the Government of Andhra Pradesh under public-private partnership programme. Respondent No.2 conducts various projects like, Health, Nutrition, Non-formal Education, vocational Training programmes etc. in the said schools. For the purpose of supervising and executing the said projects, the petitioners state that respondent No.1 recruits Coordinators, Project Officers, Assistant Project Officers, and deputes them to work under respondent No.2. Accordingly, for the said purpose, the petitioners state respondent No.1 initially appointed them on contract basis as Project Officer, Coordinator, Project Officer, Assistant Project Officer, Project Officer and Assistant Project Officer respectively for a period of one year. Thereafter, based on their performance, respondent No.2 vide proceedings dated 30.10.1007, placed the petitioners in their respective positions on contract basis for a period upto 31.12.2012 on certain terms and conditions, which was renewable by mutual consent. While working as such, respondent No.2 vide proceedings dated 30.09.2008 transferred the petitioners to their Regional Offices located at Agartala/Dimapur/Gangtok. The petitioners state that they expressed their difficulties in joining at their respective transferred place and requested respondent No.2 to retain them at the present place. However, respondent No. 2 vide proceedings dated 25.10.2008 terminated the services of the petitioners w.e.f. 30.09.2008. Questioning the said termination orders, issued by respondent No.2 as illegal and arbitrary, violative of principles of natural justice and without following the procedure contemplated under Section 79 of the Education Act, the petitioners filed the present writ petitions. The learned counsel for the petitioners submitted that respondent No.1 runs schools in the name and style of “ICFAI Republic Schools” for imparting formal education in the State of Andhra Pradesh. The schools run by respondent No.1 are recognized by the Government under the Education Act, and in fact, they also receive aid from the Government of Andhra Pradesh for running of the said schools in the form of infrastructure. Respondent No.2 is a Department of respondent No.1, created for supervising the day-to-day management of the schools run by it, which inter alia, has been established to take up various projects like Health, Nutrition, Non-formal Education, Vocational Training Programmes etc., and since the petitioners are engaged for supervision of the said projects, which are connected to the running of the schools established by respondent No.1, the learned counsel contends that notwithstanding the designation of the petitioners Coordinator/Project Officers/Assistant Project Officers, they come under the non-teaching staff of the schools. He submitted that since the activities/programmes undertaken/conducted by respondent No.2 are for the benefit of the said schools, and the said schools having been recognized under the provisions of the Education Act, the petitioners having been engaged for undertaking/conducting the said activities/programmes, they also stand governed and regulated by the provisions contained therein, and therefore, the provisions of the Education Act, are applicable to their employment, and therefore, the present writ petitions filed by the petitioners against the impugned order passed by respondent No.2, terminating their services, are maintainable, and more so when the same have been passed in violation of the principles of natural justice and without following the procedure contemplated under Section 79 of the Education Act. That in such a situation, writ petition under Article 226 of the Constitution of India, would lie against a recognized private educational institution, he placed reliance on the judgments in Vasavi College of Engineering v. A. Suryanarayana[1], BHEHSS Association, BHEL, Ramachandrapuram v. BHEL, New Delhi[2] and B. Sanjiva Rao v. Regional Joint Director of School Education[3]. He also relied on the judgment of a learned single Judge of this Court in Anita Aidinyanta v. Dr. Ken. R. Gnanakan[4], which was confirmed by a Division Bench of this Court in Evangelical Trust Association of South India v. Mrs. Anita Diddinyantz[5], in support of his contention that writ petition can be maintained if the contract service empowers the employer to terminate the services of an employee by giving three months’ notice, and that termination of services made without following the procedure contemplated under Section 79 of the Education Act, is bad. Hence, he prayed that writ petition be entertained and the matter be decided on merits. The Director of respondent No.2, filed counter on behalf of respondent Nos. 1 and 2. The learned counsel appearing on their behalf submitted that respondent No.1 is a society registered under the A.P. (T.A.) Public Societies Registration Act, 1350 Fasli, while respondent No.2 is a Charitable Trust, established by respondent No.1 and registered under the Indian Trusts Act, 1882, for the purpose of carrying on its charitable activities. Since respondent Nos. 1 and 2 are not performing any statutory duties or public functions in the management of their affairs, they can neither be termed as “State” nor “other authority” nor “instrumentality of the state”, to attract the definition of “State” in Article 12 of the Constitution of India, and to enable the petitioners to maintain the present writ petitions against them. Hence, on this ground alone, the writ petition has to be dismissed. The petitioners are seeking enforcement of contract of service and specific performance of the said contract of service, for which reliefs, writ petitions are not maintainable and are liable to be dismissed in limini. He submitted that ICFAI Republic Schools are established, managed and maintained by respondent No.1. They schools have been set up to provide facilities and services practically free of cost as part of its larger social object. The schools are providing uniforms and text books at subsidized rates to the children, and for the physical and mental wellness of the children, nutrition like milk with supplements in the morning and nutritious mid-day meals are being provided free of cost. The experienced and caring teaching and support staff is pressed into service to take utmost care in the upliftment of the children. He submitted that the petitioners are employees of respondent No.2, which is a Trust, and mere recognition of the schools established by respondent No.2, by the government under the provisions of the Education Act, and the discharge of certain incidental duties in the running of schools by respondent No.2, would not entitle the petitioners to claim that they are employees of the schools, and as such, should be held to be governed by the provisions of the said Act. He denied the contention of the petitioners that the schools are receiving aid from the government in the form of infrastructure. He submitted that respondent No.2 undertakes various projects in furtherance of its charitable activities, which among other include non- formal education for under privileged children through Alpha Centres for Learning, besides organizing health camps and free medical clinics, emergency relief programmes, legal aid programmes, feeding programmes at orphanages and old age homes, cultural activities, vocational training programmes, adult literacy programmes etc. It is for these purposes, respondent No.2 engages the services of various individuals under contract of service and they were deputed to work in places where respondent No.2 is undertaking its charitable activities. He submitted that the petitioners are not directly connected to the schools, but work for respondent No.2 for their various projects, which includes education, and education being a part of charitable activities of respondent No.2, the petitioners cannot claim that they are non-teaching staff, and that the provisions of Education Act, are applicable, and that before terminating them from service, respondent No.2 was under an obligation to follow the procedure contemplated under Section 79 thereof. The petitioners, as per the terms and conditions of their contract of employment, are liable to be transferred to the places where respondent No.2 is carrying on its activities/programmes, and as the petitioners did not report at the place to which they were transferred, respondent No.2 terminated their services. He submitted that even if it found that the petitioners are employees of the schools, and the provisions of the Education Act are applicable to their employment, they cannot directly file writ petition, but have to avail the remedies available to them under the Education Act. Hence, he prayed that the writ petition be dismissed. Having heard the learned counsel for the petitioners and the learned Standing Counsel for respondent Nos. 1 and 2, and having regard to the objection taken by respondent Nos. 1 and 2 as to the maintainability of the writ petitions, the question as to whether present writ petitions filed by the petitioners against respondent Nos. 1 and 2, are maintainable, entitling them to claim the relief, has to be considered? There can be no quarrel on the law laid down by the Courts in the judgments relied upon by the petitioners, referred to above, that employees of an educational institution, established and recognized under the provisions of the Education Act, would be governed by the provisions thereof, and in their suspension or removal from service, the provisions of Section 79 thereof, have to be followed, and in the event of such employees being suspended or removed from service, without following the procedures contemplated in the provisions of the Education Act or in violation thereof, a writ petition under Article 226 of the Constitution of India, is maintainable. This being the law governing the field, it may be noticed, whether the petitioners are employees of respondent No.2, which is a Charitable Trust or employees of the schools established by respondent No.1 and recognized by the government under the provisions of the Education Act, enabling them to maintain the present writ petitions against the order passed by respondent No.2, terminating their services. According to the petitioners, they are working as non-teaching staff in the schools established by respondent No.1, which are recognized by the government, and run and managed by respondent No.2, and as such, in the termination of their services, the procedure contemplated under the Education Act have to be followed, and since the impugned orders, terminating their services have been passed by respondent No.2, without following the procedure, they are entitled to file writ petition. This stand taken by the petitioners is disputed by respondent Nos. 1 and 2, and it is their specific case that the petitioners are neither employees of respondent No.1 nor employees of the schools established by it and recognized by the government under the provisions of the Education Act, and that they are employees of respondent No.2, which is a Charitable Trust created by respondent No. 1, and as such, writ petitions filed by them questioning the orders of termination passed by respondent No.1, are not maintainable Respondent Nos. 1 and 2, to show that respondent No.1 and respondent No. 2 are two different entities and that their aims and objects are also different, filed copies of the Memorandum of Association and the Trust Deed. A perusal of the Memorandum of Understanding of respondent No.1, would disclose that respondent No.1 was created and registered under the provisions of the A.P. (Telangana Area) Public Societies Registration Act, 1350 Fasli, mainly to promote education and allied matters connected therewith, while a perusal of the Trust Deed, whereunder respondent No.1 created respondent No.2-Charitable Trust known as “Alpha Foundation” under the Indian Trusts Act, 1882, would disclose that the same has been created to promote education, extend medical relief and relief to the poor. The administration and management of respondent No.2- Charitable Trust and the administration and management of schools established by respondent No.1, are different. The former being concerned with the realization of the activities of the Trust, which are varied and inclusive of education, while the latter is concerned only with promoting and imparting education to children studying in the said schools. It is the case of respondent Nos. 1 and 2 that respondent No.1, through respondent No.2, is carrying on several of its charitable programmes, and education is one among such charitable programmes. That for conducting/ executing the said programmes, respondent No.2 had appointed the petitioners on contract basis, as Project Officer, Co- ordinator, Project Officer, Assistant Project Officer, Project Officer and Assistant Project Officer respectively, and this fact, is not disputed by the petitioners. The appointment proceedings dated 30.10.2007 filed by the petitioners along with the writ petitions show that respondent No. 2 had placed the petitioners in the present posts for a period upto 31.12.2012 on contract basis, which is renewable on mutual consent. Be that as it may, to consider whether the petitioners can be treated as non-teaching staff of the schools established by respondent No.1, recognized by the government and run and management by respondent No.2, it would be appropriate to refer to the Rules framed by the Government in G.O. Ms. No. 1, dated 01.01.1994. The Government of Andhra Pradesh in exercise of the powers conferred on them under Section 99 read with Sections 20, 21, 79, 80 and 83 of the Education Act, framed rules in G.O. Ms. No. 1, Education (P.S.2), dated 01.01.1994, known as “The Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Schools under Private Managements) Rules, 1993. As per Rule 12 of the said Rules, the educational agency shall appoint staff as per the staffing pattern prescribed by the government from time to time and all staff shall conform to the qualifications prescribed by the Government from time to time, and the appointments so made either of teaching or non-teaching shall be subject to the approval of the competent authority as provided under sub-rule (8), and while sub-rule (9) provides that any appointment made by the educational agencies in violation of the provisions of Rule 12 shall be null and void. In the case on hand, the petitioners except stating that they were appointed by respondent No.1 to work in respondent No.2, which is managing and running the schools established by respondent No.1, which are recognized by the government, and as such, in the termination of their services, respondent Nos. 1 and 2 were under an obligation to follow the procedure contemplated under Section 79 of the Education Act, have not placed any material to show that the appointments of the petitioners is within the staffing pattern prescribed by the government, and whether their appointments were approved by the competent authority as provided under sub-rule (8), and in the absence of any material produced by the petitioners to prove that they were appointed by respondent No.1, to work in the schools established by it and recognized by the government, within the staffing pattern prescribed, and their appointments were approved by the government, and on the other hand, the material placed by the petitioners and the respondents amply demonstrating that the petitioners are not the employees of the schools, but are employees of respondent No.2, which is a Charitable Trust, carrying on several charitable activities, of which education is one among them, I am of the considered opinion that the petitioners cannot contend that in the termination of their employment by respondent No.2 under the impugned orders, the procedure contemplated under Section 79 of the Education Act was not followed, and as such, the present writ petitions questioning the termination orders are maintainable. Be that as it is, the nature of language used in the appointment orders, issued by respondent No.2 to the petitioners, would disclose that the appointment of the petitioners is not even temporary, but purely on contract basis, and that too for a limited period, which was mutually renewable. The law is well settled that in matters relating to and arising out of contractual obligations, writ petition is not a remedy, and the party seeking to enforce contractual obligations has to approach the competent civil Court having jurisdiction. For the foregoing reasons, the writ petitions are not maintainable, and they are accordingly rejected. This order, however, does not preclude the petitioners from availing the remedies open to them under civil law. No costs. _________________ N.V. RAMANA, J. Date: 30th December, 2008 KSR [1] 1991 (3) ALT 335 [2] 2000 (5) ALD 177 [3] 2000 (5) ALT 327 (DB) [4] 1997 (1) ALD 44 [5] 2003 (5) ALT 469 (DB)