B. Johny S/o Baby & K. Vijayan S/o Kamalan v. Chairman, Central Board of Secondary Education & Others

W.P.(C) No. 23814/2014 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 30[TH] DAY OF AUGUST 2022 / 8TH BHADRA, 1944 ## WP(C) NO. 23814 OF 2014 ## PETITIONER/S: - 1 B. JOHNY S/O.BABY, RESIDING AT KUZHAKKOTTUKONAM, PARASSUVAKKAL.P.O., PARASSALA, NEYYATTINKARA. - 2 K.VIJAYAN S/O.KAMALAN, THRIPLANKALAVILA, KUZHAKKOTTUKONAM, PARASSUVAKKAL.P.O., PARASSALA, NEYYATTINKARA. BY ADV SRI.B.KRISHNA MANI ## RESPONDENT/S: - 1 THE CHAIRMAN CENTRAL BOARD OF SECONDARY EDUCATION, (HEAD OFFICE), SIKSHA KENDRA", 2, COMMUNITY CENTRE, PREET VIHAR, DELHI-110 092. - 2 THE DEPUTY SECRETARY, CENTRAL BOARD OF SECONDARY EDUCATION, (HEAD OFFICE), SIKSHA KENDRA", 2, COMMUNITY CENTRE, PREET VIHAR, DELHI-110 092. - 3 THE REGIONAL OFFICER, CENTRAL BOARD OF SECONDARY EDUCATION, REGIONAL OFFICE, BLOCK-B, 2ND FLOOR, LIC DIVISIONAL OFFICE CAMPUS, PATTOM, THIRUVANANTHAPURAM-695 004. - 4 THE SECRETARY SCHEDULED CAST DEVELOPMENT DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001. - 5 THE BIBLE FAITH MISSION MOUNT ZENOY, HEAD QUARTERS, REGISTER NO.114/1989, PARASSUVAIKAL DESOM, PARASSUVAKKAL VILLAGE-695 508, NEYYATTINKARA TALUK, REPRESENTED BY THE BISHOP. W.P.(C) No. 23814/2014 : 2 : - 6 RT.REV. DR.MOSSES SWAMIDAS MOUNT ZINOY, METHUKUMMAL DESOM, EDATHOPPU PUTHEN VEETTIL, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT, CORRESPONDENT, BIBLE FAITH MISSION ENGLISH MEDIUM SCHOOL, MOUNT ZENOY, PARASSUVAIKAL, THIRUVANANTHAPURAM-695 508. - 7 KEREN PRAMOTH ADMINISTRATOR, BIBLE FAITH MISSION ENGLISH MEDIUM SCHOOL, MOUNT ZENOY, PARASSUVAIKAL, THIRUVANANTHAPURAM-695 508. - 8 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADVS. SRI.NIRMAL S., SC, CBSE SRI.RENJITH B.MARAR SMT.RESHMI JACOB - R1 TO R3 BY SRI. VARUN MURALEEDHARAN - R4 & R8 BY SRI. JOBY JOSEPH, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.08.2022, THE COURT ON 30.08.2022 DELIVERED THE FOLLOWING: W.P.(C) No. 23814/2014 : 3 : ## **SHAJI P. CHALY, J.** **--------------------------------------------------------W.P.(C). No. 23814 of 2014 --------------------------------------------------------Dated this the 30[th] day of August, 2022.** ## **JUDGMENT** The petitioners, cl **ai** ming to be the followers of the Bible Faith Mission, Mount Zenoy, respondent No.5, have filed this writ petition seeking a writ of mandamus directing the Chairman, Central Board of Secondary Education and its officials and the Secretary of the Scheduled Caste Development Department, Government of Kerala, Thiruvananthapuram, respondent Nos. 1 to 4, to initiate appropriate action and conduct an enquiry with regard to the functioning, management and accounts of BFM Medium School, Mount Zenoy, Parassuvaikkal, Thiruvananthapuram; and also to conduct an enquiry with regard to the functioning, management and the accounts of Bible Faith Mission, respondent No.5 and all institutions associated with it. 2. A further direction is also sought for, to the Chairman, Central Board of Secondary Education and the Regional Officer, Central Board of Secondary Education, Thiruvananthapuram **,** respondent Nos.1 and 3 respectively, to dispose of Exts. P16 and Ext. W.P.(C) No. 23814/2014 : 4 : P17 representations respectively, and for other related and consequential reliefs. **3.** The **c** ontention put forth by the petitioners is that the 5[th] respondent i.e., the Bible Faith Mission, contrary to the faith it maintains, indulged in various illegal and nefarious activities, including siphoning out and withdrawal of school funds. So also, it is submitted that the teachers and staff are not given adequate salary as envisaged in Ext. P1 Affiliation Bye-laws of the CBSE. 4. That apart, it is submitted that the school in India must pay salaries and admissible allowances to the staff not less than the corresponding categories of employees in the State Government schools or as per the scales etc. prescribed by the Government of India. That apart, it is contended that the manipulations were done so as to divert funds, by providing white paper bills as against the original cash bills; which would not find a place in the audited accounts. It is also submitted that every year, material fees etc. are raised, which does not find a place in the audited accounts. 5. It is also submitted that the teachers are paid salary with a W.P.(C) No. 23814/2014 : 5 : direction that they shall repay the same to the school authorities. Ext.P2 notice dated 05.07.2011 and Ext. P3 salary register are produced to substantiate the same. Other contentions are also raised in respect of the alleged embezzlement.Therefore, according to the petitioners, unless and until a detailed enquiry is conducted by the CBSE and its authorities, it would materially affect the functioning of the school in accordance with the faith of the members of the Bible Faith Mission. 6. The learned Standing Counsel for the C.B.S.E has filed a statement for and on behalf of respondents 1 to 3, basically contending that the petitioners have no _locus standi_ to file the writ petition, since they are neither personally nor otherwise holding any interest in the subject matter; that they are neither teachers nor parents of students of the schools under the 5[th] respondent. Therefore, it is submitted that the CBSE is doubting the genuineness of the intention of the petitioners. 7. That apart, it is submitted that Exts.P16 and P17 representations were preferred on 03.09.2014 after Exts.P14 and P15 W.P.(C) No. 23814/2014 : 6 : suits for mandatory injunction was filed on 29.03.2014. According to respondents 1 to 3, they approached this Court as a retaliation to the civil suit filed seeking permanent prohibitory injunction restraining certain persons from entering the premises of the mission owned lands. It is further submitted that the relief sought for the consideration of the representation by the Chairman of the Board cannot be acceded to, as the Board can only be represented through its Secretary and therefore, a mandamus as claimed in the writ petition, cannot be issued. 8. It is also pointed out that the CBSE is just an examination conducting Body for Class X as well as Class XII and that it affiliates the schools based on the NOC issued by the State Government, and that it does not have any control over the school's administration as well as finance. 9. I have heard the learned counsel for the petitioner Sri.B. Krishna Mani and the learned Standing Counsel for the CBSE, Sri. S. Nirmal, and perused the pleadings and materials on record. 10. Even though various contentions are made with respect to W.P.(C) No. 23814/2014 : 7 : the embezzlement and other aspects, no material documents are produced before this Court to arrive at any definite conclusions so as to identify as to whether any direction is to be issued to the CBSE for considering the representation. That apart, a suit filed by the Bible Faith Mission in O.S. No. 419 of 2014 is pending before the Munsiff's Court, Neyyattinkara, against certain persons seeking a permanent prohibitory injunction restraining the defendants from trespassing into the property and the Church belonging to the plaintiff society, and for other related and consequential reliefs. 11. Even though various contentions are raised with respect to the duty of the Central Board of Secondary Education, to conduct due enquiries with respect to the allegations made by the petitioners, the petitioners could not point out any specific provision in the Affiliation Bye-Laws of the CBSE and any Rules thereto empowering it to conduct any enquiry against the allegations with respect to the internal management of the school. It is also relevant to say that, admittedly, the petitioners have no authority over the administration of the school and to take up the causes of the teachers . Moreover, it is W.P.(C) No. 23814/2014 : 8 : quite clear and evident from the contentions put forth by the petitioners that, if at all there are any disputes, they are by and between the petitioners as members of the Bible Faith Mission and the Bible Faith Mission Society, which, in my considered opinion, is nothing but a personal and private dispute, liable to be sorted out resorting to civil remedies in accordance with law, and can never be considered as issues available for consideration under the public law remedy. Merely because the Central Board of Secondary Education is in the part array of the writ petition, that would not serve any purpose for issuing any writ as are sought for by the petitioners under Article 226 of the Constitution of India, since under the facts and circumstances raised by the petitioner, C.B.S.E cannot be said to be public authority so as to invoke the public law remedy . That said, the allegations made by the petitioners are also not matters coming within the realm of clause 12 of the affiliation bye laws of C.B.S.E, dealing with penalties for violation of the affiliation bye laws . I also do not think that the Bible Faith Mission is an authority under article 12 of the Constitution of India, so as to issue any writ against them invoking the powers under Article 226 of the Constitution of India 12. This question was considered by the Apex Court very W.P.(C) No. 23814/2014 : 9 : recently in _**St. Mary's Education Society & another v. Rajendra Prasad Bhargava & Ors.**_ in Civil Appeal No. 5789 of 2022, reported in 2022 Live Law (SC) 708; and held that CBSE is only a society registered under the Societies Registration Act, 1860 and the school affiliated to it, is not a creature of the statute and hence, not a statutory body. After taking note of the judgment of the Apex Court in _**Executive Committee of Vaish Degree College v. Lakshimi Narain**_ , (1976) 2 SCC 58 and other relevant judgments on the principles of public law remedy, and the fact that C.B.S.E is only a Society registered under the Societies Registration Act 1860, it is held that there is a distinction between a body created by the statute and a body governed in accordance with a statute after having come into existence. Relevant portion of the judgment reads thus : “68. We may sum up our final conclusions as under: (a) An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for W.P.(C) No. 23814/2014 : 10 : ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public. (b) Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of “State” within the expansive definition under Article 12 or it was found that the action complained of has public law element. (c) It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An W.P.(C) No. 23814/2014 : 11 : educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service. (d) Even if it be perceived that imparting education by private unaided school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether “A” or “B” is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non-teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non-teaching staff is regulated by some statutory W.P.(C) No. 23814/2014 : 12 : provisions, its violation by the employer in contravention of law may be interfered by the court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty. (e) From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character.” 13. Therefore, taking into account the above said factual and legal aspects, and the principles of law laid down in the afore quoted Judgment of the apex court, I am of the definite opinion that the petitioners have not made out any case to secure the reliefs sought for, exercising the powers conferred under Article 226 of the Constitution of India; and therefore, the writ petition has no legal sustenance and accordingly, it is dismissed. **SHAJI P. CHALY, JUDGE.** _Rv_ W.P.(C) No. 23814/2014 : 13 : ## **APPENDIX OF WP(C) 23814/2014** PETITIONER'S EXHIBITS: P1- TRUE COPY OF THE RELEVANT PORTION OF THE BYE-LAW. P2- TRUE COPY OF THE NOTICE DATED 5.7.2011. P3- TRUE COPY OF THE SALARY REGISTER COUNTERSIGNED BY THE TEACHERS AFTER REMITTING BACK THE SALARY RECEIVED IN THEIR RESPECTIVE BANK ACCOUNT TO THE SCHOOL. P4- TRUE COPY OF THE BILL ISSUED THE BIBLE FAITH MISSION ENGLISH MEDIUM SCHOOL. P5- TRUE COPY OF THE NOTICE ISSUED BY THE BIBLE FAITH MISSION ENGLISH MEDIUM SCHOOL. P6- TRUE COPY OF THE REPRESENTATION DATED 1.5.2014 FILED BEFORE THE DIRECTOR, CENTRAL BOARD OF SECONDARY EDUCATION. P7- TRUE COPY OF THE RELEVANT PORTION OF THE DETAILS PROGRAMME, "PARTNERS SPONSOR A CHILD PROGRAMME". P8- TRUE COPY OF THE COMPLAINT SENT BY THE PARENTS OF THE SPONSORED CHILDREN DATED NIL. P9- TRUE COPY OF THE COMPLAINT SENT BY THE PARENTS OF THE SPONSORED CHILDREN DATED NIL. P10- TRUE COPY OF THE COMPLAINT SENT BY THE PARENTS OF THE SPONSORED CHILDREN DATED NIL. P11- TRUE COPY OF THE COMPLAINT SENT BY THE PARENTS OF THE SPONSORED CHILDREN DATED NIL. P12- TRUE COPY OF THE COMPLAINT SENT BY THE PARENTS OF THE SPONSORED CHILDREN DATED NIL. P13- TRUE COPY OF THE REPLY RECEIVED FROM THE SCHEDULED CASTE DEPARTMENT OFFICE, PARASSALA BLOCK UNDER THE RIGHT TO INFORMATION ACT DATED 20.9.2013. P14- TRUE COPY OF THE PLAINT, O.S.419/2014 BEFORE THE MUNSIFF'S COURT, NEYYATTINKARA DATED 28.3.2014. P15- TRUE COPY OF THE APPLICATION, I.A. IN O.S. 419/2014 BEFORE THE MUNSIFF'S COURT, NEYYATTINKARA DATED 29.3.2014. W.P.(C) No. 23814/2014 : 14 : P16- TRUE COPY OF THE REPRESENTATION DATED 3.9.2014 FILED BY THE PETITIONER BEFORE THE CHAIRMAN, CENTRAL BOARD OF SECONDARY EDUCATION. P17- TRUE COPY OF THE REPRESENTATION DATED 3.9.2014 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. ## RESPONDENTS' EXHIBITS: NIL /True Copy/ PS To Judge. rv