Mery Shini P D and Roopa Das K v. State of Kerala and Ors.

W. P. (C) No. 28013/2021 ..1.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945** ## **WP(C) NO. 28013 OF 2021** ## **PETITIONERS:** |**1**|**MERY SHINI P D, AGED 41 YEARS,**| |---|---| ||**D/O. DEVASSY, AMBALATHINKAL HOUSE, CHIRAIKARAM,**| ||**VARAPUZHA P.O, ERNAKULAM-683 517.**| |**2**|**ROOPA DAS K., AGED 44 YEARS,**| ||**D/O.K.R.DAS, KUZHUVELIPADATH, VALLUVALLY,**| ||**KOONAMAVU P.O., ERNAKULAM-683 518.**| **BY ADV. SRI. BEPIN VIJAYAN** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY, DEPARTMENT OF**| ||**EDUCATION, 3RD FLOOR, ANNEX II, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695001.**| |**2**|**DIRECTOR OF GENERAL EDUCATION,**| ||**JAGATHI, THIRUVANANTHAPURAM-695 014.**| |**3**|**DEPUTY DIRECTOR OF EDUCATION,**| ||**SECOND FLOOR, CIVIL STATION, THRIKKAKARA,**| ||**KAKKANAD, KERALA-682 030.**| |**4**|**DISTRICT EDUCATIONAL OFFICER,**| ||**MINI CIVIL STATION, ANNEXE, PERIYAR NAGAR,**| ||**ALUVA, KERALA-683 101.**| W. P. (C) No. 28013/2021 **==> picture [19 x 7] intentionally omitted <==** - **5 MANAGER,** **ST.JOSEPH HIGHER SECONDARY SCHOOL, , SISTER. ANCITTA, AGED 65 YEARS, D/O. LONAPPAN K.L., RESIDING AT ST.TERESA'S CONVENT, KOONAMMAVU, PIN-683 518.** **ADV. SRI.T.M.ABDUL LATHEEF, FOR R5** **SMT.NISHA BOSE, SR.G.P.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. P. (C) No. 28013/2021 ..3.. MOHAMMED NIAS C. P. , J. ============================ W. P. (C) No. 28013 of 2021 ============================ Dated this the 26[th] day of February, 2024 ## J U D G M E N T The petitioners were working as teachers in a school, of which the 5[th] respondent is the Manager. The petitioners submit that both the petitioners were working from academic year 2008-2009 onwards. Till the academic year 2018-2019, the petitioners as well as other teachers used to take special classes for the students of Class X and Plus Two, even up to 8 P.M. This caused difficulties for teachers staying far away from the school. Therefore, the Principal and Manager of the school, making an issue about the same, passed Exts.P-2 & P-3 orders on 4.5.2020. The orders are almost identical and Ext.P-2 is reproduced hereunder. > “ _We are sorry to inform you that Management is not interested in continuing your engagement as a teacher from the academic period commencing from April 2020 onwards. You were showing gross insubordination and creating in discipline and also others engaged to turn against the management. Your_ W. P. (C) No. 28013/2021 ..4.. _work wasn't satisfactory. Hence any extension will affect the running of our institution. It is accordingly you are informed of we are enclosing cheque for Rs.65000/- Cheque No. 61972.”_ The petitioners challenge the termination orders on the ground that the same is contrary to the provisions of Rule 3 of Chapter XIV(AA) of the Kerala Education Rules. They pray for quashing Exts.P-2 & P-3 termination letters and also, to reinstate them with full back wages and other service benefits. 2. The school has filed a counter affidavit wherein it is contended that the Writ Petition is not maintainable as no writ can be issued against a private school even if it is affiliated with the CBSE. It is also contended that the petitioners were appointed on a contractual basis and since they were not performing their work to the satisfaction of the Manager, insubordination, etc., they decided not to continue with the petitioners. It is also their case in the counter that, they are not bound to conduct any enquiry as it is for them to decide whether the contract is to be continued or not. It is also their argument that Rule 3 of Chapter XIV(AA) is not applicable in the case of contractual appointments and therefore, there is no requirement of any enquiry. W. P. (C) No. 28013/2021 ..5.. 3. On behalf of the government, a counter was filed stating that the school is functioning following the provisions of the Kerala Education Rules and that, the action of the Management violates the Rules in Chapter XIV(AA) has to be treated as a violation. It is also stated that their termination were clearly unfair as the petitioners were not heard nor any enquiry conducted. The case of the petitioners was supported by the Government in their counter affidavit. 4. The learned counsel appearing for the petitioners submits that there is a clear violation of Rule 3 of Chapter XIV(AA) and also, cites the judgment in _**Toji Joseph and Anr. v. State of Kerala and Ors.** [2009 (2) KHC 900]_ for the proposition that the writ petition is maintainable for teachers of even unaided schools. 5. Sri. T.M. Abdul Latheef, learned counsel appearing for the school, relies on the judgment _**Committee of Management, Delhi Public School and Anr. v. M K. Gandhi and Ors.** [(2015) 17 SCC 353]_ to contend that for the termination of service of teachers of private school contrary to the CBSE bye-laws, no writ petition is maintainable as the private school is not “State” within the meaning of Article 12 and the W. P. (C) No. 28013/2021 ..6.. proper remedy is to file a civil suit. 6. It is pertinent to note that the judgment of the Supreme Court in the above case did not consider any statutory provision as is available in Chapter XIV(AA) and that, the consideration there was whether the private school is “State” within the meaning of Article 12 and that, in a private dispute between the teachers of CBSE school, the writ petition would not be maintainable. In the instant case, Rule 3 of Chapter XIV(AA) is relevant, which stands as follows: “ _The services of any member of the teaching or non-teaching staff shall not be terminated by the management without conducting a domestic enquiry and without giving the member an opportunity of being heard in that enquiry. ”_ 7. Chapter XIV(AA) specifically refers to the Conditions of Service of Teaching and Non-Teaching Staff of Recognised Unaided Schools and since there is no dispute that the school in the instant case is a recognized unaided school following the provisions of the KER and not CBSE, the judgments cited by the petitioners in _**Sommy Kunjappan and Anr. v. CBSE and Ors.** [2019 (2) KHC 1]_ _**, Sindhu S. v. Raja Ravi Varma Central School, Kilimanoor** [2022 KHC 642], etc.,_ which are all cases of unaided schools affiliated to the CBSE are not applicable. It was found W. P. (C) No. 28013/2021 ..7.. that the service rules of those schools cannot be enforced as it has no statutory flavour and it is only a contract between the parties, which cannot be enforced through a proceedings under Article 226. In the instant case, given the operation of Rule 3 of Chapter XIV(AA), the writ petition is maintainable and the action of the Management in the instant case, terminating the service of the petitioners without conducting a domestic enquiry, is clearly against the rule thereof. 8. The learned counsel for the school also argues that the school in question has a minority status and therefore, the provisions of Chapter XIV(AA) do not apply. The said argument is only to be rejected as there is nothing that enables the minority institutions to act contrary to Rule 3 of Chapter XIV(AA). 9. On admitted facts, where the termination of the services of the petitioners have been without conducting a domestic enquiry and since the reasons in the termination orders are indeed stigmatic, the impugned orders cannot be sustained and accordingly, the same will stand quashed. There will be a direction to the 5[th] respondent to reinstate the petitioners with full back wages. However, it will be open to the school to institute a W. P. (C) No. 28013/2021 ..8.. domestic enquiry afresh in accordance with law, after affording a reasonable opportunity of hearing to the petitioners. There will be a direction to reinstate the petitioners within 2 weeks from today. The entire arrears of salary payable to the petitioners from the date of termination have to be paid within 2 months from today. The Writ Petition is allowed as above. Sd/- MOHAMMED NIAS C. P., JUDGE MMG W. P. (C) No. 28013/2021 ..9.. ## **APPENDIX OF WP(C).NO.28013/2021** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PERMANENT RECOGNITION ORDER G.O.(MS) NO.221/2002/G.EDN PASSED BY THE IST RESPONDENT DATED 23.7.2002. EXHIBIT P2 TRUE COPY OF THE TERMINATION LETTER TO THE IST PETITIONER DATED 4.5.2020. EXHIBIT P3 TRUE COPY OF THE TERMINATION LETTER TO THE 2ND PETITIONER DATED 4.5.2020. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 11.5.2020 SUBMITTED BY THE IST PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 11.5.2020 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 11.5.2020 SUBMITTED BY THE IST PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 11.5.2020 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD PETITIONER. EXHIBIT P8 TRUE COPY OF THE LETTER NO.B6/2175/2020 DATED 23.12.2020 WITH THE REPORT OF THE 4TH RESPONDENT SUBMITTED BEFORE THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM** W. P. (C) No. 28013/2021 ..10.. ## **EXHIBIT P10** **EXHIBIT P11** **EXHIBIT P9** **EXHIBIT P12** **EXHIBIT P13** **A TRUE COPY OF THE RELEVANT PAGE OF THE ANNUAL REPORT SHOWING THE 1ST PETITIONER AS LEADING THE PRAYER GROUP OF THE SCHOOL FOR THE YEAR 2017-2018.** **A TRUE COPY OF THE RELEVANT PAGES OF THE ANNUAL REPORT SHOWING LIST OF TEACHING STAFF PUBLISHED FOR THE YEAR 2017-2018.** **TRUE COPIES OF THE PHOTOGRAPHS OF THE PETITIONERS AT VARIOUS ACTIVITIES OF THE SCHOOL.** **A TRUE COPY OF THE DETAILS OF THE PARENT TEACHERS EXECUTIVE COMMITTEE OF THE SCHOOL PUBLISHED IN THE ANNUAL REPORT FOR THE YEAR 2017-2018.** **A TRUE COPY OF THE RELEVANT PAGES CONTAINING THE REPORT OF THE STAFF EXECUTIVE MEETINGS OF THE STAFF EXECUTIVE COMMITTEE PUBLISHED IN THE ANNUAL REPORT FOR THE YEAR 2017-2018.**