# M.K Gandhi and others v. Director of Education (Secondary) U.P. Lucknow and others

- **Citation:** (2005) 3 ILRA 904
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-30
- **Case number:** Civil Misc. Writ Petition No. 28103 of 2000
- **Bench:** Yatindra Singh, Sunil Ambwani, Dp Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-k-gandhi-and-others-v-director-of-education-secondary-u-p-lucknow-and-others-40514
- **Pages:** 23

## Headnote

Sri K.C. Singh, S.S.C.
Sri A.D. Singh, ADDl. S.C.
Sri S.C. Budhwas
Sri V.B. Singh
Sri Ajit Kumar Singh
Sri H.N. Panday
Sri U.P. Singh S.C.

Constitution of India, Art-12 -statewhether the Delhi Public School is within
if meaning of the state? Held-'No'-Board
initiated
by
the
resolution
Central
Government-controlled by the secretary,
Ministry
of
Human
Resources
Department-entrusted
with
the
educational standard not only national
but out side the country-almost all the
members are either government servant
or the representative of the bodies heldD.P.S. is within the meaning of state.

Held-Para 76 (a),(b) and (c)

(a) The DPS School is not the State
within the meaning of Article 12 of the
Constitution.
(b) The Central Board of Secondary
Education, (The Board) is the State
within the meaning of Article 12 of the
Constitution.
(c) In case service conditions have not
been framed, then Chapter VII of the
affiliation bye-law relating to service
condition shall be deemed to have been
adopted by the School.

Constitution of India Art-226-Bye laws
framed by board have statutory forcebut the affiliated school-if acts contrary
to conditions contained in bye lawbreech of contract-party may fill Civil
Suit-writ held not maintainable.

Held-Para 31,35 and 76(d)

There is nothing in the constitution of
the Board to suggest that the affiliation
bye-laws
have
statutory
force.
The
service conditions are in the bye laws.
They are adopted between the parties
through the agreement and are binding
as a contract. Neither the bye-laws nor
the agreement are statutory. If there is
ay breach of the service conditions then
it is the breach of the contract and the
parties may file suit or the Board may
impose penalty prescribed under the
bye-laws but this does not mean that the
bye
laws
or
the
agreement
have
statutory force.

The DPS School is merely affiliated to the
Board and the terms of the bye laws are
merely a contract between the school ad
3 All] M.K. Gandhi and others V. Director of Education (Secondary) and others
905
the petitioners: the Minhas case is not
applicable.

The service rules and the agreement-
whether framed by a school and agreed
between the parties by an agreement or
deemed to be adopted by them and
agreement to be in the same format as
Appendix-III of the affiliation bye-laws
as held in this case-are merely private
contract between the schools and the
teachers. They do not have statutory
force.
The
writ
petition
is
not
maintainable
against
the
School
to
enforce them.
Case law discussed:
1995(5) SCC-75
1983(4) SCC-691
2002(8) SCC-481
1986(3) SCC-156

## Text

_Characters 0–39,852 of 69,369. This is a partial read: ask again with offset=39852 for what follows._

904 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
point also in allowing the writ petition.
We have to put it on record that the point
of lapse of one year was not taken in the
writ petition nor was it argued in the court
below; it was found in the judgment only
and it came as a sort of surprise to the
parties but the respondent has not given
up this point and made submissions in
support of this also; but those submissions
we have no hesitation in turning down. As
such the appeal is allowed and the
impugned order is set aside. The writ
petition is dismissed.
Appeal Allowed.
---------
ORIGINAL JURISDICATION
CIVIL SIDE
DATED: ALLAHABAD 30.8.2005

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE DP SINGH, J.

Civil Misc. Writ Petition No. 28103 of 2000

M.K Gandhi and others ...Petitioners
Versus
Director of Education (Secondary) U.P.
Lucknow and others
 ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri Rama Nand Panday

Counsel for the Respondents:
Sri K.C. Singh, S.S.C.
Sri A.D. Singh, ADDl. S.C.
Sri S.C. Budhwas
Sri V.B. Singh
Sri Ajit Kumar Singh
Sri H.N. Panday
Sri U.P. Singh S.C.

Constitution of India, Art-12 -statewhether the Delhi Public School is within
if meaning of the state? Held-'No'-Board
initiated
by
the
resolution
Central
Government-controlled by the secretary,
Ministry
of
Human
Resources
Department-entrusted
with
the
educational standard not only national
but out side the country-almost all the
members are either government servant
or the representative of the bodies heldD.P.S. is within the meaning of state.

Held-Para 76 (a),(b) and (c)

(a) The DPS School is not the State
within the meaning of Article 12 of the
Constitution.
(b) The Central Board of Secondary
Education, (The Board) is the State
within the meaning of Article 12 of the
Constitution.
(c) In case service conditions have not
been framed, then Chapter VII of the
affiliation bye-law relating to service
condition shall be deemed to have been
adopted by the School.

Constitution of India Art-226-Bye laws
framed by board have statutory forcebut the affiliated school-if acts contrary
to conditions contained in bye lawbreech of contract-party may fill Civil
Suit-writ held not maintainable.

Held-Para 31,35 and 76(d)

There is nothing in the constitution of
the Board to suggest that the affiliation
bye-laws
have
statutory
force.
The
service conditions are in the bye laws.
They are adopted between the parties
through the agreement and are binding
as a contract. Neither the bye-laws nor
the agreement are statutory. If there is
ay breach of the service conditions then
it is the breach of the contract and the
parties may file suit or the Board may
impose penalty prescribed under the
bye-laws but this does not mean that the
bye
laws
or
the
agreement
have
statutory force.

The DPS School is merely affiliated to the
Board and the terms of the bye laws are
merely a contract between the school ad
3 All] M.K. Gandhi and others V. Director of Education (Secondary) and others
905
the petitioners: the Minhas case is not
applicable.

The service rules and the agreement-
whether framed by a school and agreed
between the parties by an agreement or
deemed to be adopted by them and
agreement to be in the same format as
Appendix-III of the affiliation bye-laws
as held in this case-are merely private
contract between the schools and the
teachers. They do not have statutory
force.
The
writ
petition
is
not
maintainable
against
the
School
to
enforce them.
Case law discussed:
1995(5) SCC-75
1983(4) SCC-691
2002(8) SCC-481
1986(3) SCC-156

(Delivered by Hon'ble Yatindra Singh J.)

1. This writ petition examines the
scope and extent of protection available to
the teachers teaching in the schools
affiliated
to
the
Central
Board of
Secondary Education, (the Board).

THE FACTS

2. The petitioners were appointed as
teachers in the Delhi Public School, Site
No. 3. Merit Road, Ghazi bad (the DPS
School).
The
detail
regarding
their
appointment
and
confirmation
are
follows:
(a) The petitioner-1 was appointed for
89 days as a post graduate teacher in
physics on 13.7.1987. Subsequently, he
was appointed as a trained graduate
teacher on probation for one year on
29.3.1988. There is no date regarding his
confirmation but it is alleged in paragraph
15 of the writ petition that he was
confirmed.
This
allegation
is
not
specifically denied in the counter affidavit
and we hold that he was a confirmed
teacher. Later on, he was promoted as a
post graduate teacher in physics on 30th
June 1990.

(b) The petitioner-2 was appointed as a
post Graduate Teacher in Commerce on
7.3.1987 on probation of one year. His
service was confirmed on 5.4.1988 with
effect from 1.4.1988.

(c). The petitioner-3 was appointed as a
Trained Graduate Teacher on probation of
one year on 29.3.1988. His services were
confirmed on 1.9.1989.with effect from
8.7.1989. Letter on he was promoted as a
post graduate teacher in Mathematics on
30th June 1990.

(d) The petitioner-4 was appointed as a
physical education teacher on probation
for one year on 1.7.1991. In paragraph 22
of the writ petition I is alleged that the
petitioner-4 had successfully completed
his
period
of
probation
and
was
confirmed.
This
allegation
is
not
specifically denied in the counter affidavit
and we hold that he was a confirmed
teacher.

3. The DPS School without
conducting any inquiry or affording any
opportunity to the petitioners terminated
their services by separate but similar
orders of 16.5.2000.the petitioners filed
representations dated 6.6.2000.before the
DPS School and the board. When no
action was taken on their representation,
they filed the present writ petition. The
board has filed supplementary counter
affidavit indicating that the secretary of
the board has sought explanation from the
DPS School in this regard and the
principal in his explanation has submitted
that:
906 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
•
The services of the petitioners have
been dispensed with in accordance
with terms of their appointment.
•
They have been given there months
salary In lieu of the notice.
•
The management has not acted in
malaise manner
•
The case of the petitioners is
pending before this court and
further proceeding of the case will
be intimated to the board.
The counsel for the board has informed us
that no further action has been taken due
to the tendency of the writ petition

4. This case up for hearing before a
single Judge. He noted the difference of
opinion between the two division bench
judgments of our court (see Endnote-1)
and referred the case to the larger bench
to resolve the difference.

5. The case was listed before us
earlier and we after hearing the counsel
for the parties framed some specific
points there wasn't specific pleadings
regarding these points and we granted
time to the parties to file affidavits. The
counsel were required to serve copies of
affidavits on each other so that if the need
be they may be replied the affidavits were
exchanged and when the case was taken
up next we thought appropriate that the
Union government should also clarity its
stand The union lf India was also imp
leaded as a parley and was granted time to
clarify its stand the required affidavit was
filed by the union of India the board was
again granted time to file affidavit claying
some points this affidavit has also come
on the record.

POINTS FOR DETERMINATION
6. We have counsel for the parties
.the
following
the
point
arise
for
determination in this case.
(i) Whether the DPS School is a
state within the meaning f Article 12 of
the constitution.
(ii)
Whether the board is a state within
the meaning Article 12 of the
constitution of India.
(iii) Whether the Affiliation bye laws
have statutory force.

(iv) In case the answer to the second
question is in negative then whether
the affiliation bye-laws are still
binding on the schools affiliated to
the board
(v)
Whether
the
Committee
of
management of the School while
dealing with the service matters of
its employees or the teachers is
performing public duty
(vi) Whether
a
writ
petition
is
maintainable against a privately
managed school for violation of the
service rules
(vii) Whether
a
writ
petition
is
maintainable against the board for
non observance of its bye-laws.
(viii) Whether the petitioners are entitled
to any relief.
The points-all to V were framed by us
earlier however we have substituted the
word board in place of the word 'CBSE'.

POINT-I & II DPS SCHOOL-NOT
STATE BOARD-STATE:

7. The counsel for the parties have
cited numerous decisions (see Endnote 2)
laying down the guidelines to find out
when a body can be the state within the
meaning of Article 12 of chemical
3 All] M.K. Gandhi and others V. Director of Education (Secondary) and others
907
Biology
2002
(5)
ESC
286
has
summarized the principles as follow:

'The picture that ultimately emerges
is that the tests formulated in Ajay Hasia
are not a rigid set of principles so that if a
body falls within any one of it must exhypothesis, be considered to a state within
the meaning of Article 12. The question in
each case would be whether in the light of
the cumulative facts as established the
body is financially, functionally and
administratively dominated by or under
the control of the Government. Such
control must be particular to the body in
question and must be pervasive. If this is
found then the body is a State within
Article .12. On the other hand, when the
control is merely regulator whether under
stated or otherwise, it would not serve to
make the body a State.'

In light of these principles, let's consider
whether the DPS School and the Board
are the State within the meaning of
Article 12 or not.

DPS School-Not State
8. The DPS School is managed by a
private committee of management. There
is neither any pleading nor any averment
that it is a State within the meaning of
Article 12 of the Constitution. There is
also no pleading that it receives any
financial aid from the government or a
body that is State within the meaning of
Article 12 of the Constitution. During
arguments a statement was made at the
bar that the DPS School does not receive
any financial aid or grant-in-aid from any
government
agency.
There
is
no
government control. The DPS School is
not a State within the meaning of the
Article
of
the
Article
12
to
the
Constitution.

Board-State
9. The government of India passed a
resolution on 1.7.1929 for establishing an
organization to supervise and regulate
High School and Intermediate Education
in Rajputana, Central. India and Gwalior.
In order to give it a concrete shape, the
government issued a notification on
11.11.1929; it was published in the
official
gazette
on
16.11.1929
.In
pursuance of the aforesaid notification, a
society in the name of 'The Board of High
School and Intermediate Education for
Rajputana (including Mewara) Central
India and Gwalior, Ajmer' was formed. It
was registered on 2.1.1935 under the
Societies Registration Act, 1860. The
name of the society was changed to 'The
Central Board of Secondary Education,
Ajmer'
and
this
change
was
also
registered on 14th November 1961 under
the Rajasthan Societies Registration Act,
1958.

10. The constitution of the Board
was revised. The revised constitution was
adopted by the Board in its meeting held
on 11th February 1961 and was ratified on
2nd March 1961. It was published in the
official gazette on 27th February 1962.
Clause 4 of the Constitution states that the
Educational Advisor of Government of
India shall continue to be the Controlling
Authority of the Board. However, it is
admitted case that now the Secretary,
Human
Resource
Department;
Government
of
India
is
ex-officio
Controlling Authority of the Board.

11. Clause 6 of the Constitution (see
Appendix-1) explains the composition of
the Board. It includes the Chairman and
the Vice Chairman (clause 6 (i) and 6 (ii).
They along with the secretary of the
Board are the officers of the Board. They
908 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
are not elected but are appointed by the
controlling authority. The representatives
mentioned in clause 6 (iii) to (xi) and
(xvii) are the representatives of different
bodies. They are either government
servants
or
representatives
of
the
government
departments
or
the
representative of the bodies that are State
within the meaning of Article 12 of the
Constitution. Clause 6 (xviii) and (xix)
include
persons
from
different
professions, eminent educationalists, and
teachers of the institution recognized by
the
Board
however
they
are
not
nominated by the professional bodies or
the
educations
institutions
but
are
nominated by the Controlling Authority.
It is correct that the persons mentioned in
clause 6(xii) to Claude 6 (xv) are the
Head Master or the teachers. They are
neither representative of the bodies that
are State within the meaning of Article 12
to the Constitution nor are they appointed
by the controlling authority, but their
number is in minority.

12. The constitution of the Board
indicates the there is deep and pervasive
control to the Government of India
through the Controlling Authority. The
details of the clauses indicating the same
are as follows:
(a) The
controlling
authority
may
terminate membership of any member
appointed or nominated in case his
continuance in the office is not in the
interest of the Board. (Clause 8 (4))
(b) The recognition of any institution
can not be withdrawn without prior
approval of the controlling authority
explanation Note to Claude 9 (iv).
(c) The Controlling Authority has right
to communicate his views to the Board
regarding any matter with which the
Board has concern and in case the Board
does not take action on the same, it may
issue direction and the Board is required
to comply with the directions. He can also
take immediate action without previously
consulting the Board. He can also suspend
the Board if it defaults in the performance
of duties and has right to appoint an
administrator (clause 10).
(d) The Chairman, Vice- chairman and
Secretary are the officers of the Board and
are
appointed
by
the
Controlling
Authority clause 12 (1) and 13 (1).
(e) The Board has power to make
regulations but they do not take effect
unless sanctioned by the Controlling
authority proviso to clause 16 (2).
(f) The Controlling Authority has right
to classify documents as a secret and in
that event the auditor has o accept the
certificate
issued
by
the
Chairman
regarding the facts stated in those
documents. In the place of the documents
proviso to clause 19 (2).
(g) The Board can not amend the
constitution without approval by the
Controlling Authority clause 21.

13. The respondents in their
affidavits state that the Chairman (who is
employee of the Board) is paid by the
Board, however the other representatives
are paid by their respective departments
from where they come but they draw
allowances from the Board for the
meeting. They have also filed brochures
and annual reports issued by the Board.
These documents indicate body;
•
The Board is self financing body;
•
It does not receive any financial
assistance from the government;
•
It raises sufficient funds through
examination fees.

The fact that the Board does not receive
any financial aid from the government is
3 All] M.K. Gandhi and others V. Director of Education (Secondary) and others
909
not
conclusive
factor
to
determine
whether it is State within the meaning of
Article 12 or not: other factors also have
to be looked into. It is cumulative effect
that is to be determined.

14. Clause 1 of the constitution
states that the object of the Board is to
conduct examination at the secondary
stage of examination and such other
examination as it considers fit subject to
the approval of the Controlling Authority
or as it may be called upon by the
Government of India. The services of the
Board to examine the candidates can be
availed by any educational institution in
or outside India.

15. Clause 9 of the constitution of
the board (see Appendix-1) deals with its
[power and function it includes power to:
(a) Conduct examinations
(b) Grant diplomas/certificates.
(c) Prescribe courses of instruction for
examination
(d) Admit candidates.
(e) Recognize institution for the purpose
of its examinations
(f) Adopt measures to promote physical
and moral well being of the student.
(g) Supervise health and discipline of the
student
(h) Take such step as are necessary to
promoter the standards educating
(i) Make regulation for prescribing the
text book
(j) Advise the Administration of Union
Territories as to the courses of instruction
and syllabi of middle School education

16. Education at every level is
fundamental and is matter of public
importance the country's future depends
upon the same. Clause 9 of the
constitution indicates that the board has
empowered with functions relating to
secondary education and deals with issues
of public importance.

17. The last paragraph of clause 9
states
that
educational
institutions
recognized by the board of higher
secondary education Delhi shall be
deemed as institutions recognized the
board of higher secondary education
Delhi was merged the central board on
1.7.1962. In shows that the board has
taken over the functions of the board of
higher secondary education Delhi this
board which was merged was constituted
by union territory of Delhi and was state
within the meaning of article 12 of the
constitution

18. The year 2003 was a platinum
jubilee year of the board the annual report
of the year 2003 is on the record of the
case it states that only 309 schools were
recognized by the board in the year 1962
and 6679 schools were recognized by the
year 2003 the includes 855 Kendriya
Vidyalay 1698 government schools 417
Jawahar navoday vidyalay and 3799
independent
schools
throughout
the
territory of India apart from it, it also
includes 103 schools in 19 other countries
throughout Asia west Africa and fussier

19. The union of India has clarified
its stand by means of an affidavit of
Under Secretary in the ministry of human
resources development in this affidavit it
has been stated that
•
The government of India has
established the board to supervise
and regulate high school and
intermediate
(secondary)
education (paragraph4 of the
affidavit)
910 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
•
the ministry of human resources
development has full power and
control
over
the
board
(paragraph13 of the affidavit).

20. Considering,
(i)
The board was started by the
resolution of the resolution of the
central government; and
(ii) The
control
exercised
by the
government through the controlling
authority namely the secretary in
the ministry of human resource
department; and
(iii) The board has been entrusted with
the educational standard not only at
the national level but has been
permitted to affiliate institutions
outside the country; and
(iv) The
educational
standards
are
fundamental and relate to public
policy; and
(v) The composition of the board where
almost all the members are either
government
servants
or
representative of the bodies that are
state within the meaning of article
12 or are nominated by the
government through the controlling
authority and
(vi) The board took over function of
board
of
higher
secondary
Education of Delhi a board of union
territory of Delhi and state within
the meaning of Article 12 of the
constitution;
We hold that the Board is a State within
the meaning of Article 12 of the
Constitution.

POINT -III: BYE LAWS ARE NOT
STATUTORY
Service Rules Required to be framed:
Bye laws-Adopted as Service Rules

21. Regulations may be framed by
the Board under clause 16 of its
constitution. They take effect only after
sanction of the controlling authority.
Clause 18 of the constitution empowers
the Board and the Committee to make bylaws.
These
bye-laws
have
to
be
constitution with the resolution as well as
to the regulations. The Board has framed
'Affiliation bye-law they lay down
conditions under which affiliation or
recognition is granted to any institution.

22. Bye 3 of Chapter 11 of the
Affiliation bye-law is titled as 'Norms for
Affiliation. It sub clause (3) (I) state that
the school seeking provisional affiliation
with
the
board
must
have
formal
recognition of the State/UP Government
and the application should be forwarded
either by the State Government or there
should be no objection certificate (NOC)
from the State Government. The State of
U.P. has also issued guidelines on 30th
November 1991 for granting NOC to the
School. These guidelines clearly stipulate
that the school shall frame Service Rules
for the teachers and the employees.

23. The DPS School has not framed
any service rules but has obtained the
NOC. There has been laxity on the part of
State Government in granting NOC to the
DPS School. The NOC could not be
granted without there being service rules.
The States Government ought to have
seen that the service rules are framed.

24. Bye law no. 10 in Chapter II is
titled 'Staff and Service Conditions' This
mandated that there has to be well defined
service condition and agreement between
the parties in the format given in
Appendix-III to the affiliation bye-laws.
3 All] M.K. Gandhi and others V. Director of Education (Secondary) and others
911
25. Chapter VII of the affiliation bye
laws are titled as 'SERVICE RULES FOR
EMPLOYEES' bye law no. 24 in this
chapter
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, in
case the State Act makes adoption of the
provision obligatory, otherwise as per
Service rules mentioned in the bye-laws.
Under bye-law 24 (2) every school is to
enter into an agreement with its employee
in the format mentioned in the Education
Act of the State if that Act makes the
form obligatory' otherwise in accordance
with Appendix- III mentioned in the byelaws.

26. In our State, UP Intermediate
Education Act, 1921 is the relevant Act: it
does not make its adoption obligatory on
the schools affiliated to the Board. There
is also nothing in the U.P. Intermediate
Education Act, 1921 which makes any
contract to be entered into between the
employees and the school affiliated with
the Board: it merely provides the service
conditions and the contract for the
employees/teachers
in
the
schools
recognized under the U.P. Intermediate
Education Act, 1921. In view of this, the
DPS School is required to frame the
service rules according to the bye laws in
Chapter VII and enter into service
contract in format Appendix-III to the
affiliation bye-laws. Yet neither service
rules have been framed by the DPS
School nor is agreement in the same
format as the Appendix-III to the
affiliation bye laws.

27. There has been laxity on the part
of the Board too. Affiliation could not
have been granted unless there were
service rules and agreement in the same
format as Appendix-III to the affiliation
bye-laws. The Board at least out to have
ensured that the DPS School frames
Service rules and enters info agreement in
the correct format. What will be the
position in absence of the service rules
and agreement in format appendix -III to
affiliation bye-laws?
•
Should the DPS School be
permitted to take advantage of its
own default?
•
Can the service rules mentioned
in the affiliation bye-laws be
deemed to be adopted as service
rules by the DPS School?
•
Can the agreement between the
parties deemed to be in the same
format as in Appendix-III to the
affiliation bye-laws?

28. The DPS school was granted
NOC by the state government on the
understanding that it has or shall frame
service rules and enter into agreement
with its employees and teachers. It was
affiliated
by
the
board
on
the
understanding that it shall frame service
rules on the same lines as chapter VII of
the
affiliation
bye-laws
and
into
agreement with the teachers in the same
format as Appendix III too the affiliation
bye-laws in case the DPS the school has
neither framed service rules nor has
entered into agreement in the correct
format than it can not take advantage of
its own default in our opinion in absence
of any service rules or the agreement in
the correct format the bye-laws in chapter
VII will be deemed to be adopted as
service rules by the DPS school and the
agreement between the parties shall also
be deemed to be in the same format as
Appendix-III to the affiliation bye-laws
Are the bye-laws and the agreement
statutory? In this connection let's consider
912 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Rajasthan
state
Road
Transport
Corporation vs. Krishna Kant; 1995 (5)
SCC 75 (The Rajasthan corporation case).

The Rajasthan Corporation Case

29. There is a Central Act known as
industrial Employment (Standing Orders)
Act,
1946.
It
requires
industrial
establishment to frame Standing Orders. It
also prescribes model Standing Orders. In
absence of any certified order model
standing orders are applicable till the
certified orders are made and published.
An employee of the Rajasthan State Road
Transport Corporation was dismissed. He
filed
a
civil
suit
challenging
his
termination his suit was decreed up to the
High Court. The case was taken to the
Supreme
Court
the
question
was
regarding the nature of the Standing
orders and whether the Civil court had
jurisdiction. The Supreme Court after
considering the question held that the
standing orders can not be elevated to the
statutory of statutory provision. The court
held as follows:

"The certified Standing Orders are
not in the nature of delegated/ subordinate
legislation. It is true that the Act makes it
obligatory upon the employer (of an
industrial establishment to which the Act
applies or is made applicable) to submit
draft Standing Orders providing for the
several matters prescribed in the Schedule
to the Act and it also provides the
procedure- inter alias, the certifying
officer has to examine their fairness and
reasonable-for framed by the employer-
the employer may be a private corporation
a firm or an individual ad not necessarily
a
statutory
Corporation-which
are
approved/certified
by
the
prescribed
statutory authority after hearing the
workmen concerned. The Act does not
say that on such certification the Standing
Orders acquire statutory effect or become
part of the statute. It can certainly not be
suggested that by virtue of certification,
they
get
metamorphosed
into
delegated/Subordinate legislation. Though
these Standing Orders are undoubtedly
binging upon both the employer and the
employees and constitute the conditions
of service of the employees. It appears
difficult to say on principle that they have
statutory force, indeed, if it is held that
certified
Standing
Orders
constitute
statutory provisions or have statutory
force a writ petition would also lie for
their enforcement just as tin the case of
violation of the Rules made under the
proviso to Article 309 of the Constitution.
Neither a suit would be necessary nor a
reference under industrial disputer Act.
We do not think the certified Standing
Order4s can be elevated to that status. It is
one thing to say that they are statutorily
imposed conditions of service and an
altogether different thing to say that they
constitute statutory provisions themselves.

30. The status of the bye-laws
framed by the board is on much lower
footing. In the Rajasthan Corporation
case, the Standing Orders were framed by
the government under a statute: here the
bye-laws
are
not
framed
by
the
Government but by the Board and that
too, not under a statute.

31. There is nothing in the
constitution of the Board to suggest that
the affiliation bye-laws have statutory
force. The service conditions are in the
bye laws. They are adopted between the
parties through the agreement and are
binding as a contract. Neither the byelaws nor the agreement are statutory. If
3 All] M.K. Gandhi and others V. Director of Education (Secondary) and others
913
there is ay breach of the service
conditions then it is the breach of the
contract and the parties may file suit or
the Board may impose penalty prescribed
under the bye-laws but this does not mean
that the bye laws or the agreement have
statutory force.

The Minhas Case
32. The counsel for the petitioners
cited BS Minhas Vs. Indian Statistical
Institute: 1983 (4) SCC 582 (the Minhas
case) and submitted that the bye-laws
have statutory force. We are afraid; the
facts of the Minhas case are different than
the facts here: It is not applicable.

33. The Indian Statistical Institute
(ISI) is a society registered under the
Societies Registration Act. It has made
bye-laws. The ISI made an appointment
contrary
to
its
bye-laws
and
this
appointment
was
challenged in the
Minhas case. The Supreme Court held
that the ISI is the State within the
meaning of Article 12 of the Constition
and the bye-laws are binding upon the ISI.

34. The bye-laws of a body that is
State within the meaning of Article 12 of
the Constitution are binging upon it in
view of Article 14 of the Constitution.
The bye-laws framed by the Board are
binding upon it. In case the Board acts
contrary to it or takes no action for breach
of its bye-laws then a writ petition is
maintainable against the Board but this
does not mean that the bye laws are
statutory so far as schools affiliated to the
Board are concerned.

35. In this case, the facts are entirely
different. Here the service of any
employee of the Board is not being
terminated. Any employee of the Board is
not seeking enforcement of the bye-laws.
Here
the
petitioners-who
are
the
employees of a private school that is not a
State within the meaning of Article 12 of
the
constitution-are
seeking
its
enforcement. The DPS School is merely
affiliated to the Board and the terms of the
bye laws are merely a contract between
the school ad the petitioners: the Minhas
case is not applicable.

POINT-IV To VI: WRIT AGAINST
THE SCHOOL- NOT
MAINTAINABLE

36. Is a writ petition maintainable
for,
•
Violation of the bye-laws that do
not have statutory force?
•
Enforcement of a private contract
between the school and the
teacher?
We are afraid: our answer has to be in the
negative. The full bench of our court in
Aley Ahmad Abidi vs. District Inspector
of Schools: AIR 1977 Allahabad 539 (The
Aley Abidi Case) has held that;

'The Committee of Management of
an Intermediate College is not a statutory
body. Nevertheless, a Writ Petition filed
against it is maintainable if such petition
is for enforcement of performance of any
legal obligations or duties imposed on
such committee by a statute.'

37. The committee of management
of the DPS School is recognized by the
Board but it is neither a statutory body nor
a State within the meaning of Article 12.
The legal obligation or duty on the DPS
School is neither imposed by any statue
nor by any statutory provision. It has been
imposed by the affiliation bye- laws and
agreement which is a contract between the
parties and non statutory. In view of this
914 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
the writ petition is not maintainable
against the DPS School for violation of
the affiliation bye-laws.

38. The counsel for the petitioners
submit that:
•
The AleyAbidi case is no longer
good law.
•
Education upto age of 14 years is
a fundamental right under Article
21-A of the Constitution.
•
The writ jurisdiction has been
expanded and a writ petition is
maintainable against the School
as they perform public functions.
•
Unaided recognized institution
are discharging function as the
instrumentality of the state and
have to be governed by the
principles of fair play.
•
A writ petition - rather than the
suit -is the right remedy.

39. The counsel for the petitioners
also placed reliance of the following
decisions:
(i)
K.K-
Krishnamacharyalu
vs.
Venkateshwari
College
of
Engineering: (1997) 3 SCC 571 (the
Krishnamacharyaly case.)
(ii) Anadi Mukta Sadgura Trust vs. UR
Rudani: () 2 SCC 691 (the Anadi
Trust case.)
(iii) TMA Pai Foundation vs. State of
Karnataka: 2002 (8) SCC 481 (the
Pai Foundation case.)
(iv) Central Island Water Transport
Corporation Vs. BN Ganguli; AIR
1986 SC 1571= 1986 (3) SCC 156
(the Central Corporation Case.)
Let's consider whether the aforesaid
cases,
•
Overrule the AleyAbidi case or
not; and
•
Are applicable to the facts of this
case.

Article 21- A
40. Education is necessary and is
fundamental in progress of civilization; It
is the education that makes the life
different than the mere animal existence:
If there is no education then no nation can
progress. It is for this reason that:
•
The
Supreme
Court
while
interpreting
constitutional
provision in Uni Krishnan vs.
State of AP 1993 (1) SCC 645
(the Uni Krishnan case ) held that
the children below the age of 14
year had a fundamental right to
free education. This part of the
UniKrishnan case was upheld in
the PaiFaoundation case; and
•
Article 21-A was inserted by the
Constitution 86th Amendment Act
as a fundamental right though this
Article is yet to be enforced.

41. Article 21-A provides that State
shall
provide
free
and
compulsory
education to all children of the age of six
to fourteen years I such manner as the
State may, by law, determine. The
fundamental right mandates a duty on the
State of provide does not mandate that
unaided schools will become State within
the meaning of Article 12 of the
constitution or writ petition against them
is maintainable for enforcement of a non-
statutory contract.

The Krishnamacharyalu Case

42. In the Krishnamacharyalu case
the question was whether the petitioners,
who were lab assistants, were entitled to
pay scale on par with the government
employees or not.
3 All] M.K. Gandhi and others V. Director of Education (Secondary) and others
915
43. In this case, the government
issued the instructions for grant of pay
scale equivalent to the government
employees. The Supreme Court held that
these instruction had statutory force. This
case related to the payment of salary and
not for specific performance of contract of
personal service. It is in light of these
facts that the writ petition was held to b
maintainable. So were the facts in the
AnadiTrust case.

The AnadiTrust Case
44. In the Anandi Trust case there
was dispute between the teachers and the
management regarding pay scales. This
dispute was referred to the chancellor.
The Chancellor gave an award which was
in favour of the teachers. This award was
accepted by the State Government. The
management refused to pay the higher pay
scale and closed down the school. The
teachers then, filed a writ petition of the
salary of the period taught by them and
post retirement benefit for the period that
they had worked. This writ petition was
not for the specific performance of his
contract of service: it was for payment of
salary for services already rendered.
There was already a statutory order in
favour of the teachers. It is in this light
that the Supreme Court held that the writ
petition to be maintainable. This is clear
from the following observations of the
Supreme Court:

'There is no plea for specific
performance of contractual service. The
respondents are not seeking declaration
that they be continued in service. They are
not asking for mandamus to put them
back into the college. The are claiming
only the terminal benefits and arrears of
salary payable to them. The question is
whether the trust can be compelled to pay
by a writ of mandamus?'
45. It is correct that in this case, the
Supreme Court also observed that:
'If the fights are purely of a private
character no mandamus can issue, If the
Management of the college is purely a
private body with no public duty
Mandamus will not lie. These are two
exceptions to mandamus. But once these
are absent and when the party has no
other
equally
convenient
remedy
Mandamus cannot be denied. It has to be
appreciated that the appellants-trust was
managing the affiliated college to which
public money is paid as government Aid.
Public money paid as government aid
plays a major role in the control,
Maintenance and working of educational
institutions. The aided institutions like
government institutions discharge public
function by way of imparting Education
to students. They are subject to the rules
and
regulations
of
the
Affiliating
University,. Their activities are closely
supervised by the University Authorities.
Employment is such institutions, therefore
is not devoid of any public Character. So
are the service conditions of the academic
staff. When the University takes a
decision regarding their pay scales, it will
be vending on the management. The
service conditions of the academic staff
are, therefore, not purely of private
Character. It has super-added protection
by University decisions creating a legal
Right-duty relationship between the staff
and the management. When there is
Existence of this relationship mandamus
cannot be refused to the aggrieved party.'

46.

However,
the
aforesaid
observations in the AnandTrust case are
general ad are made in the light of the fact
that there statutory rules, regulations and
statutory order in favour of the petitioner.
In the case here, there is no government
916 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
or statutory rule/regulation/order as was
in the Krishnamacharyalu case or the
AnadiTrust case. The observations in
these cases have to be confined to the
facts of these cases and are not applicable
here.

The Pai Foundation Case.

47. The Pai Foundation case started
on the question relating to scope and right
of
the
minorities
to establish
and
administer educational institutions under
article 29 (2) and 30 (1) of the
Constitution of India. The case was
referred to eleven judges' bench and
eleven questions were framed. Some of
the questions were answered by the
eleven judges' bench and some were left
to be decided by the regular bench. None
of the question related to;
•
Whether the unaided schools are
State within the meaning of
Article 12 of the Constitution: or
•
Whether the contract of service
between the private managed
school and the teachers are
statutory: or
•
Whether
a
writ
petition
is
maintainable for enforcement of
contract of personal service.
This case is not relevant for deciding the
question that is before us.

48. It is correct that the service
conditions have to be fair: was have
already held that in absence of service
rules chapter VII of the affiliation byelaws shall be deemed to be adopted by the
parties and the agreement shall be deemed
to be in the same format as Appendix-III
to the affiliation bye-laws. Nevertheless
this does not mean that service rules are
statutory
or
the
writ
petition
is
maintainable for enforcement of contract
of service.

The Central Corporation case
49. In the Central Corporation case
two questions were involved.
•
Firstly, whether Central Inland
Water Transport Corporation-a
government company- is a State
within the meaning of Article 12
of the constitution or not. It was
held it is 'State' within the
meaning of Article 12 of the
Constitution: and
•
Secondly, whether Rule 9 (i)
which permitted the termination
of service of even a confirmed
employee
after three months
notice was void under section 23
of the Indian contract Act and
article 14 of the constitution. The
court held that the rule 9 (i) was
arbitrary
unreasonable
and
violative of Article 14 of the
Constitution.

50.