IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 WP(C).No. 15538 of 2008(Y) ----------------------------------------- PETITIONER: -------------------- MARIAMMA JOSEPH, HOUSE NO.33/3338, CHOKKATTU HOUSE, VENNALA P.O., KOCHI-28. BY ADV. SRI.THOMAS ABRAHAM SRI.DIPU.R SMT.MERCIAMMA MATHEW SRI.S.KRISHNAMOORTHY SRI.K.S.HARIDAS RESPONDENTS: ------------------------- 1. SECRETARY, CENTRAL BOARD OF SECONDARY EDUCATION, SHIKSHA KENDRA, PREETH VIHAR, NEW DELHI. 2. SECRETARY, DAKSHINA BHARATH HINDI PRACHARA SABHA, CHITTOOR ROAD, KOCHI. 3. PRINCIPAL, MAHATMA GANDHI PUBLIC SCHOOL, AMBADIMALA, CHOTTANIKKARA, ERNAKULAM DISTRICT. 4. UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF HUMAN RESOURCES DEVELOPMENT, GOVERNMENT OF INDIA, NEW DELHI. ADV.SRI.DEVAN RAMACHANDRAN FOR R1 SRI.K.M.ANEESH FOR R1 SRI.VIVEK VARGHESE P.J. FOR R2 SRI.VARUGHESE M EASO FOR R2 SMT.PRAISHEEL PRAKASAM FOR R2 SMT.ELIZEBETH MEERA FOR R2 SRI.P.J.VINOD JOSEPH FOR R2 SRI.JACOB VARGHESE, SC FOR R2 & R3 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.15538/2008 Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER DTD. 15/12/2007 SENT BY THE 2ND RESPONDENT. EXT.P1(A): COPY OF THE ENGLISH TRANSLATION FOR EXHIBIT P1. EXT.P2: COPY OF THE REPRESENTATION DTD. 10/01/2008 SUBMITTED BY THE PETITIONER. EXT.P3: COPY OF THE LETTER DTD. 22/01/2008 ISSUED BY THE MANAGEMENT TO THE PETITIONER. EXT.P4: COPY OF THE COUNTER AFFIDAVIT FILED BY THE CBSE IN WP9C) NO.13355 OF 2006. EXT.P5: COPY OF THE JUDGMENT DTD. 14/09/2007 IN WP(C) NO. 13355 OF 2006 OF THIS HON'BLE COURT. EXT.P6: COPY OF THE LETTER DTD. 1/11/2007 ISSUED BY THE CBSE TO THE 2ND RESPONDENT. EXT.P7: COPY OF THE REPRESENTATION DTD. 14/02/2008 SUBMITTED BY THE PETITIONER TO THE SECRETARY CBSE. EXT.P8: COPY OF THE REPRESENTATION DTD. 25/04/2008 SUBMITTED BY THE PETITIONER TO THE SECRETARY CBSE. RESPONDENT'S EXHIBITS: EXT.R1: COPY OF GUIDELINES ISSUD BY CBSE. EXT.R2: COPY OF LETTER OF INSPECTION DTD. 28/07/1993. EXT.R3: COPY OF THE PROVISIONAL AFFILIATION DTD.12/10/1993. EXT.R4: COPY OF THE INSPECTION REPORT PERFORMA SUBMITTED DURING 1995. EXT.R5: COPY OF PAGE NO.1 AND PAGE NO.7 OF THE SERVICE RULES OF THE SABHA AS PER THE AGREEMENT DTD. 13/04/1970. EXT.R6: COPY OF PAGE NO.1 AND 10 OF REVISED SERVICE RULES DTD. 6/6/92. EXT.R7: COPY OF THE LETTER ISSUED BY CBSE AND THE REPLY BY THE RESPONDENT. Kss ..2/- ...2..... WPC.NO.15538/2008 Y EXT.R2(A): COPY OF CERTIFICATE ISSUED BY CBSE AND REPLY BY THE RESPONDENT. EXT.R2(B): COPY OF SETTLEMENT DEED DTD. 28/12/90. EXT.R2(C): COPY OF SETTLEMENT DEED DTD. 6/05/93. EXT.R2(D): ORDER DTD. 22/10/1976. EXT.R2(E): COPY OF LETTER OF INSPECTION DTD. 16/05/08. EXT.R2(F): COPY OF DECISION DTD. 5/06/99. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. =============== W.P.(C) NO. 15538 OF 2008 (Y) ==================== Dated this the 24th day of September, 2008 J U D G M E N T The prayer in this writ petition is to quash Exts. P1 and P3 and to direct the 1st respondent to take urgent steps to ensure compliance of Section 30(1) of CBSE Affiliation Bye-laws prescribing the age of retirement age as 60 years in the case of the petitioner. 2. The facts of the case are that the Dakshina Bharath Hindi Prachara Sabha, constituted under Dakshina Bharath Hindi Prachara Sabha Act, 1964, is functioning throughout South India. According to them, the Central Sabha is registered in the state of Tamilnadu and provincial sabhas have been registered in other states such as Karnataka, Kerala and Andhra Pradesh. In Kerala, the Dakshina Bharath Hindi Prachar Sabha was registered as a Society under the Travancore Cochin Charitable Literary Scientific Cultural and Educational Society Act, 1955. The society has established the Mahatma Gandhi Public School, of which the 3rd respondent is the Principal. The school is affiliated to the 1st respondent. 3. In so far as this case is concerned, the dispute is regarding WPC 15538/08 :2 : the age of retirement of teachers working in the 3rd respondent School. 4. Petitioner has been working in the 3rd respondent school of which the 2nd respondent is the Manager. As already noticed, the school is affiliated to the Central Board of Secondary Education, the 1st respondent herein. Ext.P1 is a communication issued by the 2nd respondent to the petitioner informing her that going by the details furnished, her date of birth was 16/6/1950 and that she will be attaining the age of 58 years on 15/6/08 and will be retiring on the evening of that date. On receipt of Ext.P1, petitioner submitted Ext.P2 stating that in terms of the CBSE Affiliation Bye-laws, retirement age prescribed is 60 years and requested that she be permitted to continue in service till she attains the age of 60 years. That was examined by the 3rd respondent and Ext.P3 is the reply given, stating that they have adopted the scales and other conditions of service which exist in the Government service and the Employees Association have accepted the same as per the settlement dated 6/5/1993. It is also stated that even though State Government employees retire at 55 years, the 3rd respondent adopted retirement age existed in Central Sabha and other Provincial Sabhas, which is 58 years and therefore, according to the 3rd respondent, 58 years is the retirement age. On that basis, Ext.P2 WPC 15538/08 :3 : request was declined. Petitioner submits that she continued to represent and Exts. P7 and P8 are referred to and as these did not yield any result, this writ petition was filed with the prayers mentioned above. 5. Counsel for the petitioner mainly contends that school is affiliated to the 1st respondent and that a school affiliated to the 1st respondent is bound by the Affiliation Bye-laws issued by the 1st respondent. It is stated that Section 24 occurring in Chapter VII of the Affiliation Bye-laws, provides that each school affiliated with the Board shall frame service rules for its employees, which will be as per Education Act of the State/UT., if the Act makes adoption of the same obligatory and that otherwise service rules given in the subsequent sections of the Bye- laws will be applicable. It is stated that there is no provision in the Kerala Education Act or the Rules making it obligatory on the schools affiliated to the 1st respondent to adopt the same and therefore the service rules provided in the Affiliation Bye-laws is what is applicable to them. On this reasoning, counsel contends that Section 30 of Chapter VII, which provides that every employee, including Head of the Institution, shall retire from service on attaining the age of 60 years is what is applicable to the petitioner and other teachers, including the head of the institution. WPC 15538/08 :4 : 6. The petitioner would also invite my attention to Ext.P5, a judgment rendered by this court in WP(C) No.13355/06 filed by another teacher of the 3rd respondent school itself, where claim for continuance beyond 58 years was raised. It is seen from the judgment that taking the view that consequence of non compliance of bye-laws is disaffiliation, the petitioner therein was relegated to pursue her claim before the 1st respondent itself. It is stated that following the judgment, the matter was taken up by the petitioner in Ext.P5 judgment in WP(C) No.13355/06 and connected case and that the 1st respondent had issued Ext.P6 requesting the 3rd respondent to permit the petitioner in Ext.P5 to continue in the school till she attains the age of 60 years and also pay her arrears of back wages. It was also stated in Ext.P6 that on non-compliance thereof, the Board will take appropriate action as deemed fit in consonance with the Affiliation Bye-laws. Thus, it is relying on the terms of the Affiliation Bye- laws, primarily the petitioner is asserting her claim for continuing in service till attaining 60 years of age. 7. A counter affidavit and an additional counter affidavit has been filed by the 2nd respondent. According to the 2nd respondent, though the school was started long ago, it was in 1993 that they had applied for WPC 15538/08 :5 : provisional affiliation to the 1st respondent, when the 1st respondent had issued Ext.R1 guidelines. The guidelines provides for execution of service agreement with employees, salaries paid to staff, scale of pay and allowances which should atleast be at par with corresponding category of teachers employed in Government institutions, disbursement of salary to be made by cheque at the beginning of the month, but not later than 10th of each employees be verified and that the service agreement should be as per the Board's norms/State or Union Territory norms. 8. It is stated that thereafter, the inspection was conducted and Ext.R2 is the notice of appointment of Inspection Committee. Ext.R4 is the report submitted by the Inspection Committee, in which, against the question whether the service conditions prevailing in the school are in accordance with those of State/UT or CBSE, the answer given was State. In so far as pay scale followed by the School is concerned, there also it is indicated that the school has been following the State Government pattern. It is stated that it was taking note of the inspection report that provisional affiliation was granted by Ext.R3. 9. According to the 2nd respondent, much prior to the grant of provisional affiliation in 1993, on 13/4/70 itself, as per Ext.R5, they had WPC 15538/08 :6 : laid down the service conditions that are applicable to the staff, providing that all employees of the State shall retire at the age of 55 years. It is stated that subsequently in order to achieve parity with their own counterparts appointed by the other provincial sabhas, although the age of retirement in the state schools is still 55, based on an agreement between the management and the employees, the age of retirement was enhanced to 58. They have also produced as Ext.R7(2), a reply given by the school to Ext.P6, by which the petitioner in WP(C) No.13355/06 was directed to be continued till 60 years. In Ext.R7(2), the 2nd respondent has informed that in view of the prevailing rules, which has been followed by them consistently in the past, the age of retirement is 58 and not 60 and therefore the direction in Ext.P6 cannot be complied with. 10. The senior counsel for the 2nd respondent also made reference to the affiliation Bye-laws. Reference was made to Section 10.3 occurring in Chapter II which provides that school should have well defined conditions of service as per norms of State/UT Government. Referring to the provisions contained in Chapter 6, it is stated that special provisions have been made in respect of schools established by Society/Trusts. It is stated that Section 19.1.X provides that the Society/Trust running the WPC 15538/08 :7 : school shall have power to lay down conditions of service as per norms of CBSE/Government and to approve promotion/appointment/termination of employees as well as to grant special increments or rewards to staff. Reference is also made to Section 21, where in Section 21.1.ix, it is provided that subject to overall control of the Society/Trust, the School Managing Committee shall ensure that the norms given in the Act of the State and by the CBSE regarding terms and conditions of service and other rules governing recognition/affiliation of the school are strictly adhered to. It is contended that since special provisions have been made in respect of Society/Trust running the schools as per Chapter 6 of the affiliation Bye- laws, general provisions available at Section 24 and 30 of Chapter VII are subject to the provisions contained in Chapter VI. Lastly, it is contended that as held by this court in Ext.P5 judgment, consequence of non compliance with the provisions of the affiliation bye-laws is only withdrawal of affiliation as provided in Section 17 of Chapter V of the Bye-laws. 11. I have considered the submissions made by both sides. 12. As already noticed, the question to be decided is whether the age of retirement as applicable to the petitioner is 58 or whether she is entitled to continue in service till 60 years. As contended by the learned WPC 15538/08 :8 : counsel for the petitioner, Section 24 of the Affiliation Bye-law provides that each school affiliated with the Board shall frame service rules for its employees, which will be as per the Education Act of the State/UT. “if the Act makes adoption of the same obligatory”. If it is not so, as this provision itself clarifies the service rules given in the subsequent sections of the Affiliation Bye-laws is what is applicable. If this rule is held to be applicable to the petitioner, necessarily, the petitioner will be entitled to the benefit of Section 30 occurring in Chapter VII providing for retirement on attaining the age of 60 years. 13. Admittedly the school in question is established by a society registered under the Travancore Cochin Charitable Literary Scientific, Cultural and Educational Society Act, 1955. Section 19.1.X occurring in Chapter VI provides that society shall have powers to lay down conditions of service as per norms of CBSE/Government and approve promotion/appointment/termination of the employees as well as to grant special increments or rewards to the staff. The provisions of this Chapter are not made subject to the provisions contained in Chapter VII of the Bye-laws. On a plain reading of this provision, it can be seen that the society has the power to lay down conditions of service as per norms of WPC 15538/08 :9 : CBSE/Government. In this case, it is the consistent case of the 2nd respondent that the conditions of service which they had adopted are on a par with what is followed by the Government. As already noticed, following the receipt of Ext.R1 guidelines and Ext.R2 notice of inspection, in 1993, inspection was conducted by a team deputed by the 1st respondent and Ext.R4 inspection report was submitted. Even in Ext.R4 report, it has been made known to the 1st respondent that what is adopted and followed by the 2nd respondent are the rules that are applicable to the Government Sector. Admittedly, the age of retirement in so far as the Government sector is 55 and as stated in the affidavit filed by the 2nd respondent, in order to achieve parity with their counterparts, the age of retirement of the employees of the 2nd respondent was later enhanced to 58 on the basis of an agreement. Since there is nothing to indicate that Chapter VI of the Affiliation bye- laws, which inter alia confers power on the Society to lay down conditions of service is subject to Section 24 or 30 occurring in Chapter VII of the Affiliation bye laws, I am inclined to agree with the counsel for the 2nd respondent that they are well within their powers to lay down conditions of service consistent with the rules that are governing the employees in the Government Sector. WPC 15538/08 :10 : 14. From the facts, it is obvious that the 1st respondent was well aware that the conditions of service that is followed by the 2nd respondent are those which are applicable to the employees in the Government Sector. If according to the 1st respondent, the Rule which is followed by the 2nd respondent was impermissible as per the Affiliation Bye-laws, the consequence is withdrawal of affiliation as provided for in Section 17 of Chapter V of the Affiliation bye-laws. Therefore, as held by this Court in Ext.P5 judgment, it is open to the petitioner to take up her case with the 1st respondent. 15. On the materials, which are now placed before me, I am inclined to take the view that the 2nd and 3rd respondents cannot be directed to retain the petitioner beyond 58 years of age. If that be the position, the petitioner cannot be granted any relief in this writ petition. The writ petition is only to be dismissed and I do so. ANTONY DOMINIC, JUDGE Rp