t^''S#icKlB ':'Ssna^"^sfff.::^^^:./. •;. ,l'.»eeM-T8TFtW.,l'9.ac»aas ' ', WXSGSQH sCTraQQias®'aw'aaE ^» (3*H} tefla s(3Tjt!tsTa P8e •tps <TCB8a-T8TTqa 'W^Td T89»St®TTW 'ao^asqETQ-extFSeaBM t q&n<»W 'effiiwaNr s@jssfaessMla'sss'^ SSEC.V5D.gs JGWaKSOaS 30 •Sx'e^.asaas t ^Swafv^. /' {d't^ "[8<10 Hsacsrsa-^XHaew: -• - -- waiawt wgiffHg aiw¥xaaw»-s '260 OTT-Tqrsa 'ssqrA »asad 'ax^scsQ Ss^jvEHaaciQ 2 BspaeH eqssn-qg 'lseiixssQaa - • -":'< '; . ^ AWwcoag ao as^ea •a-w»B©-T » -s a SSSA (d'W) teaa q.aT^srg pae rpsqe^ 'jeSsirTBTTtIS 'g ao^aag 'S^'OM q.aaa^g 'g-8 aequati aag.reng 'o/x 9SG3(By3^y N* a'Sff 3 G ag:T< ;.... - ''sxe^eX. gs -^mWff'^-egiSe 1 - a933ST3CCS JiaEtEfiXXSF%-»EB9:-^-t.., iP?o "K'IS' WSBSSSQSSSa i'. €66T/* ssBEsaaa^a ?MI)llODOBj3 0)a aopatq.sa'laa^at ~-R?e¥ y HIGH COURT OF CHHATTISGARH : BILASPUR PETITIONER WRIT PETITION No. 3364 of L993 Smt. Aleykutty Kuriakose AFf< ,1,-rl0 RESPONDENTS Versus Central Board of Secondary Education & Ofhers PETITIONER AND WRITPETITIONNo. 1401 of 1994 Smt. J. Satyalaxmi ^ RESPONDENTS Versus Central Board of Secondary Education & Others ^ Post for pronouncement ofjudgment and order on .J.^ day ofjanuary, 2010. Sd/- Satish K. Agaihotrt Judge '^ t- : mGH COURT OF CHHATTISGARH : BILASPUR PETITIONER KESPONDENTS WRIT PETITION No. 3364 of 1993 Smt. Aleykutty Kuriakose Versus Central Board of Secondary Education & Others AND PETITIONER RESPONDENTS WRIT PETITION No. 1401 of 1994 Smt. J. Satyalaxmi Versus Centoral Board of Secondary Education & Others (Writ petitions under Article 226/227 ofthe Constitution oflndia) SB: HON'BLE SHRI SATISH K. AGNIHOTRI. J. ::s'!!^*BSBf "1 Present:- Shri V.G. Tamaskar, counsel for the petitioners. Shri P.R. Patankar and Shri Adil Minhaz, counsel for the respondentNo.l. Shri H.B. Agrawal, Sr. Advocate with Smt. Meera Jaiswal, Advocate for the respondent No.2. Shri S.M. Ali, Advocate appearing on behalf of Shri A.S. Gaharwar, counsel for the respondent No.3. Shri Rakesh Anthony, counsel for the respondent No.4. JUDGMENT & ORDER (Delivered on the ft+ Say ofjanuary, 2010) 1. Since W.P. Nos. 3364 of 1993 and 1401 of 1994 involve a common question of law as well as common facts and as such, both the petitions are being considered together and disposed of by this common order. 2. Challenge in these petitions are to the order dated 6.5.1992 (Annexure - P/5 in W.P. No. 3364 of 1993) and the order dated 6.5.1992 (Annexure - P/2 in W.P.No.1401 of 1994) whereby the I :1 "••-. v'yw^^ w^"v~\ --"-"-y j v ^, petitioners were directed to retire on attaining the age of superannuation of55 years. The indisputable facts, in nutshell, as projected by the petitioners are that Smt. J. Satyalaxmi (petitioner in W.P. No. 1401/1994) was appointed as Assistant Teacher in the respondent No. 4/school by order dated 30.9.1985 (Annexure - P/l to W.P. No. 1401/1994) on regular basis. The petitioner namely Smt. Aleykutty Kuriakose (in W.P. No. W.P. No.3364 of 1993) was appointed in respondent No. 4/school by order dated 15.11.1971 (Annexure - P/l to W.P. No. 3364 of 1993) on temporary basis. By order dated 3.2.1973 (Aimexure - P/2 to W.P. No.3364 of 1993) her services was regularized as Assistant Teacher. Thereafter, by order dated 14.8.1978 the petitioner was promoted to the post of Senior Assistant Teacher. By the impugned order dated 6.5.1992 (in both the writ petitions), the petitioners were made to retire on attaining the age ofsuperannuation of55 years. Thus, these petitions. Shri V.G.Tamaskar, leamed counsel appearing for the petitioners would submit that the respondent No. 4/School could not have retired the petitioners from service at the age of 55 years as the govemment circular No. F-4/226/85-A1/20 dated 5.11.1985 (Annexure P/5 to W.P. No. 1401/1994) of the Govemment of Madhya Pradesh, School Education Department, provides that all the employees working in govemment educational institutions would retire on attaining the age of superannuation at 60 years. The respondent No. 4/school is performing duty of imparting education and as such, it is a public duty and it should act in accordance with the govemment circular as aforestated for regulating service -%...-. • -' •i- 1 .?E:sia^. 1 -..:S6;'^|'i jj -..<:!:y -^KS^S:'i i-f-'i.'- k'.a<ag r ..- conditions of the employees includirig the teachers. The respondent No. 4/school was granted a land admeasuring 2 acres on lease and farther a sum ofRs. 1,50,000/- as aid for its maintenance. Therefoi-e, the respondent No. 4/school cannot claim itself to be an unaided minonty mstitute. Clause 30 ofthe "Affiliation Bye-Laws" (for short 'the bye-laws') of the Central Board of Secondary Education, New Delhi which became effective from 28 January, 1988 provides that every employee of the affiliated institution shall retire from service on attaining the age of superannuation as per correspondmg categories ofemployees ofaided/unaided schools ofthe State/UT concemed. Per contra, Shri Rakesh Anthony, leamed counsel appearing for the respondent No. 4/school would submit that the respondent No. 4/school is not performing a public duty. The school was initially recognized by the Board of Secondary Education, Madhya Pradesh. Later on, from the year 1977, it was affiliated with the Central Board of Secondary Education, New Delhi. Shri Anthony would specifically deny that the respondent No. 4/school is a grant-in-aid school. He would further submit that the circular dated 5.11.1985 of the Govemment of Madhya Pradesh is not applicable to the respondent school as the respondent No. 4/school has its own rules goveming service conditions of its employees. The orders of retirement dated 6.5.1992 are on the basis ofthe resolution passed by the management of the respondent No. 4/school taken in the year 1992, wherem it was decided to fix the age of superannuation to be 55 years and notify in the school and to amend the gratuity rule accordingly. In view of the said resolution, the petitioners were ^ .•r.SvKi & ' • ^•i^ Ki li~—^.^'' |ia»!!E rightly retired on attaining the age of 55 years. It would be further submitted that the respondent No. 4/school follows all the rules and regulations framed by the respondent No. 4/school. 7. Shri Anthony would further submit that the respondent No. 4/school is a private minority educational institution running on charity and nominal fees charged from the students. Since the respondent No. 4/school is not having any fmancial assistance, it was decided by the goveming body to fix the age ofsuperannuation to be 55 years. Even otherwise, the terms and conditions of appointment clearly provides that the services of petitioners could be terminated by giving one months' notice or one month's pay in lieu of the notice, without assigning any reason. The respondent No. 4 has its own service manual and has prescribed the service conditions. As per appointment order issued to the petitioners, it has been clearly mentioned in para 6 and 10, which reads as under: "vi. You shall be subject to the service rules and regulations including the conduct rules as well as the administrative orders of the Management from time to time and shall obey all such orders and directions as you may receive from the competent authority. x. In respect ofany matter for which no provision has been made in this letter, the provisions of Estt. Rules and Code of conduct for MGM Sr. Sec. School or orders issued by the Management shall apply and the decision of Management taken from time to time and to their applicability shall be final and binding on the staff." 8. Shri H.B.Agrawal, leamed Senior counsel appearing with Smt. Meera Jaiswal, leamed counsel for the respondent No. 2 would submit that the respondent No. 4/school after the year 1977 was afBliated with the Central Board of Secondary Education and as such, the respondent No. 2 has no control over the said institution. ^,j{»'0Baiit( .•"Stll l'lh«i'< '.;;;'^?<^a^^ Shri Agrawal would further submit that the respondent No. 2 has unnecessarily been added as a party to this petition although no relief has been claimed against it. 9. Shri Adil Miuhaz with Shri P.R.Patankar, leamed counsel appearing for the respondent No. 1 would submit that the respondent No. 4/school is under an obligation to comply with the bye-laws of the Central Board of Secondary Education as the school is affiliated by the Cento-al Board of Secondary Education. 10. I have heard leamed counsel appearing for the parties, perused the pleadings and documents appended thereto. 11. The respondent No. 4/school has neither claimed nor has established that it is protected under the provisions ofArticle 29 and 30 ofthe Constitution of India. It is not claim of the respondent No. 4/school that it is a minority institution and as such, I cannot pursue myselfto go into constitutional protection aspect for want of pleadings, submissions and necessary evidences. There is no dispute that the respondent No. 4/school is affiliated with the Central Board of Secondary Education. Under the bye-laws, affiliation is defined in clause 1(1) which reads as under: "(i) "Affiliation" means formal enrolment of a school among the list of approved schools of the Board following prescribed/approved coiirses of studies upto class VIII as well as those preparing students according to prescribed courses for the Board's examinations" 12. Clause l(xxii) of the bye-laws defmes "Private Unaided School" which reads as under: "(xxii) "Private Unaided School" means a school run by a Society/Trust duly constituted and registered under the provisions of Central/State ^\.^:1 K' e'-il<s S SliaitliBfc. 1 ;^,..'1i"^ "l!?E3:;S^i a Acts not getting any regular grant-in-aid from any Govemment source(s)." 13. Even if it is correct that the respondent No. 4/school is not getting any aid from the State Govemment, clause 30 would be applicable with regard to the regulation of service conditions of the employees ofthe school. Clause 30 ofthe bye-laws reads as under: "30. Retirement (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 concemed (2) The Managing Committee may grant extension as per mles 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" 14. Bare perusal of the above-stated provisions makes it clear that whether the school is aided or unaided, the employees ofthe schools which are affiliated with the Central Board of Secondary Education would retire from service on attaining the age of superannuation as per the corresponding categories of employees of aided/unaided schools of the State/Union Temtory concemed. It is further not in dispute that at the relevant time, the age ofretirement ofthe teachers pursuant to the circular dated 5.11.1985, was 60 years as applicable to aided schools also. Thus, there is a clear departure/violation of clause 30 ofthe bye-laws. 15. Reading all the provisions together and applying the same to the facts ofthe case, it is apparent that the impugned 6.5.992 (Annexure - P/5 in W.P. No.3364 of 1993) aad the order dated 6.5.1992 (Annexure - P/2 in W.P.No.1401 of 1994) whereby the petitioners were directed to retire on attaining the age of 55 years was contrary ,-) ,'./ "i. ~^-. •^// :., 'i;1''^1" ^ to clause 30 of the bye-laws, which is binding on all the affiliated schools. 16. Reliance of Shri Anthony on a decision of Supreme Court in M.P.Vidyut Kwmachari Sangh v. M.P.Electricity Board is misplaced. In the present case, the date of retirement of the employees is govemed under clause 30 ofthe bye-laws In absence of the above-stated bye-laws, employer was free to fix the date of superannuation. Non-compliance of bye-laws may lead to cancellation of affiliation. The respondent No. 4 has not p roducd an mles or regulations goveming retirement of the employees of the respondent No. 4/school except the resolution ofthe goveming body which ipsofacto may not be binding on the service conditions ofthe employees. 17. "By Laws" as defmed in Advanced Law Lexicon, (P.Ramanatha Aiyar) 3 Edition, 2005 Volume 1 at page 646, reads as under: "A bye-law denotes etymologically a law for the regulation of the 'by' or township. Arnold's Municipal Corporation 7 Ed. P.150. It has in modem times been held to mean rules made by some authority subordinate to the legislature for the regulation, administration or management of a certain district and binding upon all persons who come within their scope. Law relating to Meetings by Shackleton, p. 410. In Kurse v. Johnson, RUSSEL C.J. defined it as meaning "an ordinance affecting the public, or some portion of the public imposed by some authority clothed with statutory powers ordering something to be done or something not to be done and accompanied by some sanction or penalty for its non-observance. It necessarily involves restriction of liberty of action by persons who come under its operation as to acts which but. for the bye-law they, would be free to do or not to do as they pleased. Further, it involves the consequences ' (2004) 9 SCC 755 c'/ •~1 isW^ that, ifvalidly made it was the force oflaw within the sphere oflegitimate operation. " 18. The contention of leamed counsel appearing for the respondent No.4/school that the petitioners could have been terminated even under the terms ofthe appointment which provides for removal with one month's notice or notice pay in lieu ofnotice, is rejected. Clause 6 of the tenns and conditions clearly provides that the appointment of the petitioners are subject to the service rules and regulations including the conduct rules ofthe respondent No. 4. 19. Bare perusal ofthe defmition clearly implies that bye-laws are in the nature ofrules which are binding on the parties govemed by the bye- laws. The respondent No. 4/school is admittedly affiliated with the Central Board of Secondary Education. The respondent No. 4/school is under an obligation to comply with all the provisions of the bye- laws including clause 30 which provides for the age of superannuation. 20. In view of the foregoing, and for the reasons stated hereinabove, both the writ petitions are allowed. Since the petitioners have been retired on 6.5.1992 on attaming the age of 55 years, when the petitioners ought to have retired on attaining the age of 60 years, the petitioners are entitled to back-wages from the date of their retirement till they attained the age ofsuperannuation i.e. 60 years. 21. No order asto costs. Sd/- Satish K. Agaihofri Judge Amit