MISHRA AND NAVIN SINHA, JJ.] versus ASHA SRIVASTAVA & ORS. on 14 February 2019

O R D E R

1. The main question for consideration in the appeal is as tomaintainability of writ petition as against private school receiving grantin aid to the extent of dearness allowance. The appeal has been filedagainst the judgment and order dated 30.1.2009 passed by the DivisionBench of the High Court of Calcutta whereby the appeal filed byrespondent No.1 was allowed directing his reinstatement along with backwages.

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A2. The facts of the case are that respondent No.1 herein appliedfor the post of Assistant Teacher in the year 1985 and after the interviewshe was appointed as Assistant Teacher in the appellant-school onprobation w.e.f. 01.04.1995. The school authority referred all requisitepapers to the District Inspector of Schools concerned seeking approvalon 31[st] March 1995. On 2[nd] January 1997 concerned District InspectorBof Schools (Primary Education), Calcutta referred those papers to theDirector of School Education, West Bengal for his opinion who in turnrequested the District Inspector of Schools concerned to submit adeclaration from respondent No.1 herein that she would not claim anyarrear of salary. Respondent No.1 unwillingly agreed to such anCundertaking.

3. Thereafter, there was a delay in granting approval andrespondent No.1 on 27.11.2000 filed a Writ Application No.3232 of 2000before the High Court seeking Writ of Mandamus commanding theDirector of School Education, West Bengal and concerned DistrictDInspector of Schools to accord approval of the appointment. The HighCourt vide order dated 18.12.2000 in W.P. No.3232/2000 disposed ofthe Writ Petition with direction to Director of School Education to considerthe matter with regard to approval of the appointment of respondentNo.1 as Assistant Teacher in appellant school within a period of sixweeks.E

4. The order passed in the Writ Petition was communicated to theappellant-school which resulted in a show cause notice being issued bythe Secretary of the Managing Committee to respondent No.1 hereinasking as to why she moved the said Writ Application impleading theDistrict Inspector of Schools (Primary Education) Calcutta as a party in Fthe proceeding, which as per their understanding caused breach ofdiscipline of the school. Along with this letter order of suspension wasissued and she was suspended for a period of 12 days w.e.f. 21.12.2000to 01.01.2001.

5. In her reply to the letters of the appellant school, respondentNo.1 denied the charges against her. After the period of suspension wasGover, respondent No.1 reported to her duties. She was allowed to signthe attendance register but was restrained from taking classes.Respondent No.1 applied for leave and on 14.2.2001 she resumed herduties but she was not allowed to perform the duty. A letter was issuedto her by the Secretary of the Managing Committee asking her not toHattend duty from 15.02.2001. But she continued to attend school and took the classes. On 19.02.2001 she was forcibly ousted from the schoolwith the help of police and was asked to attend a meeting wherein shewas threatened to face termination of service. On 20.2.2001 she wasserved with a letter of termination annexing two cheques.

6. Assailing the order of termination, respondent No.1 filed a WritApplication before the High Court. Learned Single Judge of the HighCourt vide order dated 20.8.2001 dismissed the W.P. No.889/2001 onthe ground that as the concerned school was not a recognised primaryschool by State Government but a privately managed primary school,writ application was not maintainable. However, it allowed respondentNo.1 to institute an appropriate suit for seeking relief claimed in the writpetition.

7. Challenging the dismissal of WP No.889/2001, respondent No.1appealed before the Division Bench of the High Court. The DivisionBench vide order dated 30.1.2009 in APOT No.709/2001 in W.P. No.889/2001 allowed the appeal preferred by respondent No.1 and set aside thetermination order and allowed respondent No.1 to join appellant schoolwithin two weeks with the full entitlement of salary, allowances andservice benefits as per law. This order of the Division Bench has beenchallenged before this Court.

8. It was urged by Mr. Sanjiv Sen, learned Senior Counselappearing for the appellant that the Writ Application as against privateunaided school was not maintainable in view of the decisions of thisCourt in Committee of Management, Delhi Public School & Anr. v.M.K. Gandhi & Ors. (2015) 17 SCC 353, Sushmita Basu & Ors. v.Ballygunge Shiksha Samity & Ors. (2006) 7 SCC 680 and SatimblaSharma & Ors. v. St. Paul’s Senior Secondary School & Ors. (2011)13 SCC 760.

9. It was also submitted on behalf of appellant that the SingleJudge or the Division Bench should have gone into the legality of thetermination order and on the grounds on which the termination order hadbeen passed. The respondent employee was guilty of insubordinationand using foul language as mentioned in the order of termination. Learnedcounsel also pointed out that the explanation was asked from therespondent-employee but she could not submit a satisfactory explanationand consequently her services were terminated. He submitted that shewas heard and there was no violation of principles of natural justice.

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A10. He also urged that no prayer was made in the writ applicationfor grant of back wages and the Division Bench has not assigned anyreason for granting relief of reinstatement in the instant case. Learnedcounsel prayed that back wages should not be granted in casereinstatement part is upheld.B11. Mr. Arun K. Sinha learned counsel on behalf of the respondent- B11. Mr. Arun K. Sinha learned counsel on behalf of the respondent-employee has relied upon the decision of this Court in Ramesh Ahluwaliav. State of Punjab & Ors. (2012) 12 SCC 331. He has also pressedinto service the decision in Raj Kumar v. Director of Education &Ors. (2016) 6 SCC 541 to submit that approval of concerned Governmentauthority was necessary for appointment, it was necessary for terminationCalso as found by the High Court, the termination was illegal and void.Back wages and reinstatement have been rightly ordered as nodepartmental enquiry was conducted before passing the order oftermination.

12. Firstly, we examine the question with respect to theDmaintainability of the Writ Application. It has been clearly averred in theWrit Application that the appointment was, at first instance, on probationfor two years. It is not in dispute that in the instant case that approval ofthe appointment had been made with retrospective effect 1[st] January2001 and no approval admittedly has been obtained for the purpose ofremoval passed on 20.2.2001. There is a clear pleading in the WritEApplication that the approval was necessary, its denial in reply is evasive.No such approval had been obtained in the instant case. It is apparentthat the Government has also pleaded in its reply that approval ofappointment was made necessary considering the arbitrariness in theappointments which was prevailing, and once approval for appointmentFwas necessary there is no doubt that approval for removal was alsonecessary, which was not obtained in the instant case.

13. In Raj Kumar v. Director of Education & Ors.(supra) thisCourt held that Section 8(2) of the Delhi School Education Act, 1973 isa procedural safeguard in favour of employee to ensure that order oftermination or dismissal is not passed without prior approval of DirectorGof Education to avoid arbitrary or unreasonable termination/dismissal ofemployee of even recognised private school. Moreover, this Court alsoconsidered the Objects and Reasons of the Delhi School Education Act,1973 and came to the conclusion that the termination of service of thedriver of a private school without obtaining prior approval of Director ofHEducation was bad in law. This Court observed:

“45. We are unable to agree with the contention advanced by thelearned counsel appearing on behalf of the respondent School.Section 8(2) of the DSE Act is a procedural safeguard in favourof an employee to ensure that order of termination or dismissal isnot passed without the prior approval of the Director of Education.This is to avoid arbitrary or unreasonable termination or dismissalof an employee of a recognised private school.”

14. This Court has laid down in Raj Kumar v. Director ofEducation & Ors. (supra) that the intent of the legislature while enactingthe Delhi School Education Act, 1973 (in short, ‘the DSE’) was to providesecurity of tenure to the employees of the school and to regulate theterms and conditions of their employment. While the functioning of bothaided and unaided educational institutions must be free from unnecessaryGovernmental interference, the same needs to the reconciled with theconditions of employment of the employees of these institutions andprovision of adequate precautions to safeguard their interests. Section8(2) of the DSE Act is one such precautionary safeguard which needsto be followed to ensure that employees of educational institutions donot suffer unfair treatment at the hands of the management.

15. Writ application was clearly maintainable in view of aforesaiddiscussion and more so in view of the decision of this Court in RameshAhluwalia v. State of Punjab & Ors. (supra) in which this court hasconsidered the issue at length and has thus observed:

“13. in the aforesaid case, this Court was also considering asituation where the services of a Lecturer had been terminatedwho was working in the college run by the Andi Mukti SadguruShree Muktajee Vandas Swami Suvarna Jayanti Mahotsav SmarakTrust. In those circumstances, this Court has clearly observed asunder:(V.R. Rudani case, SCC PP.700-701, paras 20 & 22)

“20. The term ‘authority’ used in Article 226, in the context,must receive a liberal meaning unlike the term in Article 12.Article 12 is relevant only for the purpose of enforcement offundamental rights under Article 32. Article 226 confers poweron the High Courts to issue writs for enforcement of thefundamental rights as well as non-fundamental rights. The words‘any person or authority’ used in Article 226 are, therefore, notto be confined only to statutory authorities and instrumentalitiesof the State. They may cover any other person or body AB

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performing public duty. The form of the body concerned is notvery much relevant. What is relevant is the nature of the dutyimposed on the body. The duty must be judged in the light ofpositive obligation owed by the person or authority to the affectedparty. No matter by what means the duty is imposed, if a positiveobligation exists mandamus cannot be denied.

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22. Here again, we may point out that mandamus cannot bedenied on the ground that the duty to be enforced is not imposedby the Statute. Commenting on the development of this law,Professor de Smith states:’To be enforceable by mandamus apublic duty does not necessarily have to be one imposed byCstatute. It may be sufficient for the duty to have been imposedby charter, common law, custom or evencontract. We sharethis view. The judicial control over the fast expanding maze ofbodies affecting the rights of the people should not be put intowatertight compartment. It should remain flexible to meet theDrequirements of variable circumstances. Mandamus is a verywide remedy which must be easily available ‘to reach injusticewherever it is found’. Technicalities should not come in theway of granting that relief under Article 226. We, therefore,reject the contention urged for the appellant on the maintainabilityof the writ petition.E

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The aforesaid observations have been repeated and reiterated innumerous judgments of this Court including the judgments in UnniKrishnan and Zee Telefilms Ltd. brought to our notice by thelearned counsel for the appellant Mr. Parikh.

14. In view of the law laid down in the aforementioned judgmentFof this Court, the judgment of the learned Single Judge as also theDivision Bench of the High Court cannot be sustained on theproposition that the writ petition would not maintainable merelybecause the respondent institution is a purely unaided privateeducational institution. The appellant had specifically taken theplea that the respondents perform public functions i.e. providingGeducation to children in their institutions throughout India.”

(emphasis supplied)

It is apparent from the aforesaid decisions that the Writ Applicationis maintainable in such a matter even as against the private unaidededucational institutions.H

16. Learned Senior Counsel relied upon the decision of this Courtin Committee of Management, Delhi Public School & Anr. v. M.K.Gandhi & Ors. (supra) wherein the question of termination of servicesof teachers was involved. The Committee of Management filed a CivilAppeal in this Court against the decision of Allahabad High Courtcontending that the Delhi Public School, Ghaziabad was not a ‘State’within the meaning of Article 12 of the Constitution. The question involvedwas that termination of service of teachers of a private school withoutconducting the enquiry was contrary to bye-laws. This Court held thatthe Writ Application was not maintainable as a private school is not‘State’ under Article 12 of the Constitution.It is pertinent tomention here that the question of approval by Government authoritywas not involved in M.K. Gandhi (Supra). Thus, this decision isdistinguishable.

17. In Satimbla Sharma & Ors. v. St. Paul’s Senior SecondarySchool & Ors. (supra) relied upon on behalf of the appellant the questioninvolved was whether an unaided private institution is subject to publiclaw application and to what extent. The concept of equal pay for equalwork was invoked for unaided institutions on the basis of parity withrespect to the teachers in the Government and Government-aided schools.It was observed that the right to equality enshrined in Articles 14 and39(d) of Constitution are available against ‘State’ only. It cannot beclaimed against unaided private minority school. The teachers of thegovernment school are paid mostly out of the Government funds andteachers of private unaided schools are paid out of fees and otherresources of the private school. No relief can be given in absence ofstatutory provisions in favour of teachers in unaided private educationalinstitutions. The school in question was not receiving any grant in aidfrom the Government of Himachal Pradesh and there was a provision infavour of teachers enabling them to claim an equal salary. The decisionis wholly distinguishable on facts and proposition of law laid down hasdifferent field to operate.

18. Similarly, in Sushmita Basu & Ors. v. Ballygunge ShikshaSamity & Ors. (supra) the appellant was working in a recognised privateeducational institution in the State of West Bengal. The schools werenot receiving grants in aid from the government but were getting dearnessallowance component of the approved teachers working in the school.The issue was with respect to the applicability of recommendation ofthe First Pay Commission and that of Second Pay Commission though AB

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Athere was no statutory provision or even government order directingprivate unaided educational institutions to implement the recommendationsof the Third Pay Commission, they were implemented by the schools aspart of their agreement with the teachers. Though the management alsoimplemented the recommendations of the Third Pay Commission in thesense that the salaries of the teachers were hiked in terms of the saidBreport, the institution refused to give retrospective effect to theenhancement. The institution refused to give effect to therecommendations of the Third Pay Commission retrospectively w.e.f.1.1.1998. Ultimately, this Court observed in Sushmita Basu (supra) thatthe Writ of Mandamus by the Court issued against the private institutionsCwould be justified only if a public law element is involved.

19. The factual matrix in Sushmita Basu (supra) was different. Itwas with respect to the parity with the Government aided institution andthe teachers working in unaided institutions and schools were not boundto implement recommendations of Pay Commission. No such proposition Dis involved in the present matter. Hence, the decision has no applicationto the instant case.

20. In view of the aforesaid discussion, we have no hesitation tohold that the Writ Application is maintainable as rightly held by the DivisionBench of the High Court.

E21. Coming to the question of relief of reinstatement and backwages, in view of the factual matrix of the instant case, we have takennote of the fact that the approval of the concerned authorities was notobtained and stigmatic order of dismissal was passed in the most arbitrarymanner. It is not in dispute that no departmental enquiry was held.

22. In the case of Anoop Jaiswal v. Government of India &FAnr. (1984) 2 SCC 369, the appellant was undergoing training as aprobationer. On a particular day, all the trainees arrived late at the placewherein P.T./unarmed combat practice was to be conducted. An enquirywas initiated and the impugned order of discharge under Rule 12(b) ofthe IPS (Probation) Rules, 1954 on the ground of his unsuitability forGbeing a member of the IPS. It was held that the order was punitive innature which in absence of any proper enquiry. It was held as under:

“13......Even though the order of discharge may be non-committal,it cannot stand alone. Though the noting in the file of theGovernment may be irrelevant, the cause for the order cannot beignored. The recommendation of the Director which is the basisH

of foundation for the order should be read along with the order forthe purpose of determining its true character. If on reading thetwo together the Court reaches the conclusion that the allegedact of misconduct was the cause of the order and that but for thatincident it would not have been passed it is inevitable that theorder of discharge should fall to the ground as the appellant hasnot been afforded a reasonable opportunity to defend himself asprovided in Article 311(2) of the Constitution.”

23. In the present case, the employee has served for five yearsbefore dismissal from the service by a stigmatic order, passed withoutholding an enquiry, we cannot entertain the submission raised by learnedSenior counsel for the Appellant-School that back wages should be denied.The manner in which termination had been made was clearly arbitraryand the order was illegal and void and thus back wages should follow.

24. Resultantly, the Civil Appeal is dismissed.

No costs.

Nidhi Jain

Appeal dismissed.

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