WP/24592/2008 of Wilson Vijay Kumar Thummakoti Vs The Institute of Chartered Financial Analysts of India on 30 December 2008

*THE HON’BLE SRI JUSTICE N.V. RAMANA

+Writ Petition Nos. 24588, 24589, 24590, 24591,24592 and 24593 of 2008

%Dated 30.12.2008

W.P. No. 24588 of 2008

K. Kanakaraj, S/o K. Tukaram,

aged 30 years, Occ: Project Officer, The Alpha Foundation, Panjagutta, Hyderabad, R/o H.No.2-2-128/G/110, Saibaba Colony, Opp: Vijayapuri Colony, Uppal, Hyderabad.

VERSUS

..... PETITIONER

$ The Institute of Chartered Financial Analysts of India (ICFAI), 52, Nagarjuna Hills, Panjagutta, Hyderabad, rep. by its Chairman and others.

.....RESPONDENTS

! Counsel for Petitioner: Sri Koka Srinivasa Kumar ^ Counsel for Respondent No.3: GP for Education Counsel for Respondents 1 and 2: Sri B. Adinarayana Rao < GIST:

ØHEAD NOTE:

? Cases referred:

1.1991 (3) ALT 335

2.2000 (5) ALD 177

3.2000 (5) ALT 327 (DB)

4.1997 (1) ALD 44

5.2003 (5) ALT 469 (DB)

THE HON’BLE SRI JUSTICE N.V. RAMANA

W.P. Nos. 24588, 24589, 24590, 24591,24592 and 24593 of 2008

Common order:

The petitioners state that respondent No.2, namely The AlphaFoundation, is a Department of respondent No.1, namely The Institute ofChartered Financial Analysts of India (ICFAI), which is an educationalsociety established under the ICFAI University Act. They further statethat respondent No.1-ICFAI, apart from imparting university education,also runs schools for imparting formal education to the down trodden inthe name and style of “ICFAI Republic Schools” in several states,including the State of Andhra Pradesh, and that all these schools arerecognized by the Government of Andhra Pradesh under the A.P.Education Act, 1982 (hereinafter referred to as ‘the Education Act’). That respondent No.2, which is a Department of respondent No.1, looksafter the day-to-day management of the said schools. Respondent No.2entered into a Memorandum of Understanding with the Government ofAndhra Pradesh under public-private partnership programme.

Respondent No.2 conducts various projects like, Health,Nutrition, Non-formal Education, vocational Training programmes etc. inthe said schools. For the purpose of supervising and executing the saidprojects, the petitioners state that respondent No.1 recruits Coordinators,Project Officers, Assistant Project Officers, and deputes them to workunder respondent No.2. Accordingly, for the said purpose, thepetitioners state respondent No.1 initially appointed them on contractbasis as Project Officer, Coordinator, Project Officer, Assistant ProjectOfficer, Project Officer and Assistant Project Officer respectively for aperiod of one year. Thereafter, based on their performance, respondentNo.2 vide proceedings dated 30.10.1007, placed the petitioners in theirrespective positions on contract basis for a period upto 31.12.2012 oncertain terms and conditions, which was renewable by mutual consent.

While working as such, respondent No.2 vide proceedings dated30.09.2008 transferred the petitioners to their Regional Offices located atAgartala/Dimapur/Gangtok. The petitioners state that they expressedtheir difficulties in joining at their respective transferred place and requested respondent No.2 to retain them at the present place. However, respondent No. 2 vide proceedings dated 25.10.2008terminated the services of the petitioners w.e.f. 30.09.2008. Questioningthe said termination orders, issued by respondent No.2 as illegal andarbitrary, violative of principles of natural justice and without followingthe procedure contemplated under Section 79 of the Education Act, thepetitioners filed the present writ petitions.

The learned counsel for the petitioners submitted that respondentNo.1 runs schools in the name and style of “ICFAI Republic Schools” forimparting formal education in the State of Andhra Pradesh. The schoolsrun by respondent No.1 are recognized by the Government under theEducation Act, and in fact, they also receive aid from the Government ofAndhra Pradesh for running of the said schools in the form ofinfrastructure. Respondent No.2 is a Department of respondent No.1,created for supervising the day-to-day management of the schools runby it, which inter alia, has been established to take up various projectslike Health, Nutrition, Non-formal Education, Vocational TrainingProgrammes etc., and since the petitioners are engaged for supervisionof the said projects, which are connected to the running of the schoolsestablished by respondent No.1, the learned counsel contends thatnotwithstanding the designation of the petitioners Coordinator/ProjectOfficers/Assistant Project Officers, they come under the non-teachingstaff of the schools.

He submitted that since the activities/programmesundertaken/conducted by respondent No.2 are for the benefit of the saidschools, and the said schools having been recognized under theprovisions of the Education Act, the petitioners having been engaged forundertaking/conducting the said activities/programmes, they also standgoverned and regulated by the provisions contained therein, andtherefore, the provisions of the Education Act, are applicable to theiremployment, and therefore, the present writ petitions filed by thepetitioners against the impugned order passed by respondent No.2,terminating their services, are maintainable, and more so when thesame have been passed in violation of the principles of natural justiceand without following the procedure contemplated under Section 79 ofthe Education Act. That in such a situation, writ petition under Article226 of the Constitution of India, would lie against a recognized privateeducational institution, he placed reliance on the judgments in Vasavi College of Engineering v. A. Suryanarayana[[1]],BHEHSS

Association, BHEL, Ramachandrapuram v. BHEL, New Delhi[[2]]and

B. Sanjiva Rao v. Regional Joint Director of School Education[[3]].He also relied on the judgment of a learned single Judge of this Court inAnita Aidinyanta v. Dr. Ken. R. Gnanakan[[4]], which was confirmed bya Division Bench of this Court in Evangelical Trust Association of South India v. Mrs. Anita Diddinyantz[[5]], in support of his contentionthat writ petition can be maintained if the contract service empowers theemployer to terminate the services of an employee by giving threemonths’ notice, and that termination of services made without followingthe procedure contemplated under Section 79 of the Education Act, isbad. Hence, he prayed that writ petition be entertained and the matterbe decided on merits.

The Director of respondent No.2, filed counter on behalf ofrespondent Nos. 1 and 2. The learned counsel appearing on theirbehalf submitted that respondent No.1 is a society registered under theA.P. (T.A.) Public Societies Registration Act, 1350 Fasli, whilerespondent No.2 is a Charitable Trust, established by respondent No.1and registered under the Indian Trusts Act, 1882, for the purpose ofcarrying on its charitable activities. Since respondent Nos. 1 and 2 arenot performing any statutory duties or public functions in themanagement of their affairs, they can neither be termed as “State” nor“other authority” nor “instrumentality of the state”, to attract the definitionof “State” in Article 12 of the Constitution of India, and to enable thepetitioners to maintain the present writ petitions against them. Hence,on this ground alone, the writ petition has to be dismissed. Thepetitioners are seeking enforcement of contract of service and specificperformance of the said contract of service, for which reliefs, writpetitions are not maintainable and are liable to be dismissed in limini.

He submitted that ICFAI Republic Schools are established,managed and maintained by respondent No.1. They schools have beenset up to provide facilities and services practically free of cost as part ofits larger social object. The schools are providing uniforms and textbooks at subsidized rates to the children, and for the physical andmental wellness of the children, nutrition like milk with supplements inthe morning and nutritious mid-day meals are being provided free ofcost. The experienced and caring teaching and support staff is pressedinto service to take utmost care in the upliftment of the children. Hesubmitted that the petitioners are employees of respondent No.2, which is a Trust, and mere recognition of the schools established byrespondent No.2, by the government under the provisions of theEducation Act, and the discharge of certain incidental duties in therunning of schools by respondent No.2, would not entitle the petitionersto claim that they are employees of the schools, and as such, should beheld to be governed by the provisions of the said Act. He denied thecontention of the petitioners that the schools are receiving aid from thegovernment in the form of infrastructure.

He submitted that respondent No.2 undertakes various projects infurtherance of its charitable activities, which among other include non-formal education for under privileged children through Alpha Centres forLearning, besides organizing health camps and free medical clinics,emergency relief programmes, legal aid programmes, feedingprogrammes at orphanages and old age homes, cultural activities,vocational training programmes, adult literacy programmes etc. It is forthese purposes, respondent No.2 engages the services of variousindividuals under contract of service and they were deputed to work inplaces where respondent No.2 is undertaking its charitable activities. He submitted that the petitioners are not directly connected to theschools, but work for respondent No.2 for their various projects, whichincludes education, and education being a part of charitable activities ofrespondent No.2, the petitioners cannot claim that they are non-teachingstaff, and that the provisions of Education Act, are applicable, and thatbefore terminating them from service, respondent No.2 was under anobligation to follow the procedure contemplated under Section 79thereof. The petitioners, as per the terms and conditions of their contractof employment, are liable to be transferred to the places whererespondent No.2 is carrying on its activities/programmes, and as thepetitioners did not report at the place to which they were transferred,respondent No.2 terminated their services. He submitted that even if itfound that the petitioners are employees of the schools, and theprovisions of the Education Act are applicable to their employment, theycannot directly file writ petition, but have to avail the remedies availableto them under the Education Act. Hence, he prayed that the writ petitionbe dismissed.

Having heard the learned counsel for the petitioners and thelearned Standing Counsel for respondent Nos. 1 and 2, and havingregard to the objection taken by respondent Nos. 1 and 2 as to themaintainability of the writ petitions, the question as to whether presentwrit petitions filed by the petitioners against respondent Nos. 1 and 2, are maintainable, entitling them to claim the relief, has tobe considered?

There can be no quarrel on the law laid down by the Courts in thejudgments relied upon by the petitioners, referred to above, thatemployees of an educational institution, established and recognizedunder the provisions of the Education Act, would be governed by theprovisions thereof, and in their suspension or removal from service, theprovisions of Section 79 thereof, have to be followed, and in the event ofsuch employees being suspended or removed from service, withoutfollowing the procedures contemplated in the provisions of theEducation Act or in violation thereof, a writ petition under Article 226 ofthe Constitution of India, is maintainable. This being the law governingthe field, it may be noticed, whether the petitioners are employees ofrespondent No.2, which is a Charitable Trust or employees of theschools established by respondent No.1 and recognized by thegovernment under the provisions of the Education Act, enabling them tomaintain the present writ petitions against the order passed byrespondent No.2, terminating their services.

According to the petitioners, they are working as non-teachingstaff in the schools established by respondent No.1, which arerecognized by the government, and run and managed by respondentNo.2, and as such, in the termination of their services, the procedurecontemplated under the Education Act have to be followed, and sincethe impugned orders, terminating their services have been passed byrespondent No.2, without following the procedure, they are entitled to filewrit petition. This stand taken by the petitioners is disputed byrespondent Nos. 1 and 2, and it is their specific case that the petitionersare neither employees of respondent No.1 nor employees of the schoolsestablished by it and recognized by the government under theprovisions of the Education Act, and that they are employees ofrespondent No.2, which is a Charitable Trust created by respondent No.1, and as such, writ petitions filed by them questioning the orders oftermination passed by respondent No.1, are not maintainable Respondent Nos. 1 and 2, to show that respondent No.1 andrespondent No. 2 are two different entities and that their aims andobjects are also different, filed copies of the Memorandum of Associationand the Trust Deed. A perusal of the Memorandum of Understanding ofrespondent No.1, would disclose that respondent No.1 was created andregistered under the provisions of the A.P. (Telangana Area) PublicSocieties Registration Act, 1350 Fasli, mainly to promote education and allied matters connected therewith, while a perusal of the Trust Deed,whereunder respondent No.1 created respondent No.2-Charitable Trustknown as “Alpha Foundation” under the Indian Trusts Act, 1882, woulddisclose that the same has been created to promote education, extendmedical relief and relief to the poor.

The administration and management of respondent No.2-Charitable Trust and the administration and management of schoolsestablished by respondent No.1, are different. The former beingconcerned with the realization of the activities of the Trust, which arevaried and inclusive of education, while the latter is concerned only withpromoting and imparting education to children studying in the saidschools. It is the case of respondent Nos. 1 and 2 that respondent No.1,through respondent No.2, is carrying on several of its charitableprogrammes, and education is one among such charitable programmes. That for conducting/ executing the said programmes, respondent No.2had appointed the petitioners on contract basis, as Project Officer, Co-ordinator, Project Officer, Assistant Project Officer, Project Officer andAssistant Project Officer respectively, and this fact, is not disputed by thepetitioners. The appointment proceedings dated 30.10.2007 filed by thepetitioners along with the writ petitions show that respondent No. 2 hadplaced the petitioners in the present posts for a period upto 31.12.2012on contract basis, which is renewable on mutual consent.

Be that as it may, to consider whether the petitioners can betreated as non-teaching staff of the schools established by respondentNo.1, recognized by the government and run and management byrespondent No.2, it would be appropriate to refer to the Rules framed bythe Government in G.O. Ms. No. 1, dated 01.01.1994.

The Government of Andhra Pradesh in exercise of the powersconferred on them under Section 99 read with Sections 20, 21, 79, 80and 83 of the Education Act, framed rules in G.O. Ms. No. 1, Education(P.S.2), dated 01.01.1994, known as “The Andhra Pradesh EducationalInstitutions (Establishment, Recognition, Administration and Control ofSchools under Private Managements) Rules, 1993. As per Rule 12 ofthe said Rules, the educational agency shall appoint staff as per thestaffing pattern prescribed by the government from time to time and allstaff shall conform to the qualifications prescribed by the Governmentfrom time to time, and the appointments so made either of teaching ornon-teaching shall be subject to the approval of the competent authorityas provided under sub-rule (8), and while sub-rule (9) provides that any

Conclusion

appointment made by the educational agencies in violation of theprovisions of Rule 12 shall be null and void.

In the case on hand, the petitioners except stating that they wereappointed by respondent No.1 to work in respondent No.2, which ismanaging and running the schools established by respondent No.1,which are recognized by the government, and as such, in the terminationof their services, respondent Nos. 1 and 2 were under an obligation tofollow the procedure contemplated under Section 79 of the EducationAct, have not placed any material to show that the appointments of thepetitioners is within the staffing pattern prescribed by the government,and whether their appointments were approved by the competentauthority as provided under sub-rule (8), and in the absence of anymaterial produced by the petitioners to prove that they were appointedby respondent No.1, to work in the schools established by it andrecognized by the government, within the staffing pattern prescribed,and their appointments were approved by the government, and on theother hand, the material placed by the petitioners and the respondentsamply demonstrating that the petitioners are not the employees of theschools, but are employees of respondent No.2, which is a CharitableTrust, carrying on several charitable activities, of which education is oneamong them, I am of the considered opinion that the petitioners cannotcontend that in the termination of their employment by respondent No.2under the impugned orders, the procedure contemplated under Section 79 of the Education Act was not followed, and as such, thepresent writ petitions questioning the termination orders aremaintainable.

Be that as it is, the nature of language used in the appointmentorders, issued by respondent No.2 to the petitioners, would disclose thatthe appointment of the petitioners is not even temporary, but purely oncontract basis, and that too for a limited period, which was mutuallyrenewable. The law is well settled that in matters relating to and arisingout of contractual obligations, writ petition is not a remedy, and the partyseeking to enforce contractual obligations has to approach thecompetent civil Court having jurisdiction.

For the foregoing reasons, the writ petitions are not maintainable,and they are accordingly rejected. This order, however, does notpreclude the petitioners from availing the remedies open to them undercivil law. No costs.

Date: 30[th] December, 2008KSR

[1]1991 (3) ALT 3351991 (3) ALT 335

[2]2000 (5) ALD 1772000 (5) ALD 177

[3]2000 (5) ALT 327 (DB)2000 (5) ALT 327 (DB)

[4]1997 (1) ALD 441997 (1) ALD 44

[5]2003 (5) ALT 469 (DB)2003 (5) ALT 469 (DB)

_________________

N.V. RAMANA, J.