Marwari Balika Vidyalaya vs Asha Srivastava

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9166 OF 2013

MARWARI BALIKA VIDYALAYA Appellant(s)

VERSUS

ASHA SRIVASTAVA & ORS. Respondent(s)

O R D E R

1. The main question for consideration in the appeal

is as to maintainability of writ petition as against

private school receiving grant in aid to the extent of

dearness allowance. The appeal has been filed against the

judgment and order dated 30.1.2009 passed by the Division

Bench of the High Court of Calcutta whereby the appeal

filed by respondent No.1 was allowed directing his

reinstatement along with back wages.

2. The facts of the case are that respondent No.1 herein

applied for the post of Assistant Teacher in the year

1985 and after the interview she was appointed as

Assistant Teacher in the appellant-school on probation

w.e.f. 01.04.1995. The school authority referred all

requisite papers to the District Inspector of Schools

concerned seeking approval on 31st March 1995. Signature Not Verified

On 2nd Digitally signed by R NATARAJAN Date: 2019.02.28 16:59:20 IST January 1997 concerned District Inspector of Schools Reason:

(Primary Education), Calcutta referred those papers to 2

the Director of School Education, West Bengal for his

opinion who in turn requested the District Inspector of

Schools concerned to submit a declaration from respondent

No.1 herein that she would not claim any arrear of

salary. Respondent No.1 unwillingly agreed to such an

undertaking.

3. Thereafter, there was a delay in granting approval and

respondent No.1 on 27.11.2000 filed a Writ Application

No.3232 of 2000 before the High Court seeking Writ of

Mandamus commanding the Director of School Education,

West Bengal and concerned District Inspector of Schools

to accord approval of the appointment. The High Court

vide order dated 18.12.2000 in W.P. No.3232/2000 disposed

of the Writ Petition with direction to Director of School

Education to consider the matter with regard to approval

of the appointment of respondent No.1 as Assistant

Teacher in appellant school within a period of six weeks.

4. The order passed in the Writ Petition was

communicated to the appellant-school which resulted in a

show cause notice being issued by the Secretary of the

Managing Committee to respondent No.1 herein asking as to

why she moved the said Writ Application impleading the

District Inspector of Schools (Primary Education)

Calcutta as a party in the proceeding, which as per their 3

understanding caused breach of discipline of the school.

Along with this letter order of suspension was issued and

she was suspended for a period of 12 days w.e.f.

21.12.2000 to 01.01.2001.

5. In her reply to the letters of the appellant

school, respondent No.1 denied the charges against her.

After the period of suspension was over, respondent No.1

reported to her duties. She was allowed to sign the

attendance register but was restrained from taking

classes. Respondent No.1 applied for leave and on

14.2.2001 she resumed her duties but she was not allowed

to perform the duty. A letter was issued to her by the

Secretary of the Managing Committee asking her not to

attend 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 school with the help of police

and was asked to attend a meeting wherein she was

threatened to face termination of service. On 20.2.2001

she was served with a letter of termination annexing two

cheques.

6. Assailing the order of termination, respondent No.1

filed a Writ Application before the High Court. Learned

Single Judge of the High Court vide order dated 20.8.2001

dismissed the W.P. No.889/2001 on the ground that as the 4

concerned school was not a recognised primary school by

State Government but a privately managed primary school,

writ application was not maintainable. However, it

allowed respondent No.1 to institute an appropriate suit

for seeking relief claimed in the writ petition.

7. Challenging the dismissal of WP No.889/2001,

respondent No.1 appealed before the Division Bench of the

High Court. The Division Bench 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 the

termination order and allowed respondent No.1 to join

appellant school within two weeks with the full

entitlement of salary, allowances and service benefits as

per law. This order of the Division Bench has been

challenged before this Court.

8. It was urged by Mr. Sanjiv Sen, learned Senior

Counsel appearing for the appellant that the Writ

Application as against private unaided school was not

maintainable in view of the decisions of this Court 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 Satimbla Sharma & Ors. v. St. Paul's Senior Secondary

School & Ors. (2011) 13 SCC 760.

5

9. It was also submitted on behalf of appellant that

the Single Judge or the Division Bench should have gone

into the legality of the termination order and on the

grounds on which the termination order had been passed.

The respondent employee was guilty of insubordination and

using foul language as mentioned in the order of

termination. Learned counsel also pointed out that the

explanation was asked from the respondent-employee but

she could not submit a satisfactory explanation and

consequently her services were terminated. He submitted

that she was heard and there was no violation of

principles of natural justice.

10. He also urged that no prayer was made in the writ

application for grant of back wages and the Division

Bench has not assigned any reason for granting relief of

reinstatement in the instant case. Learned counsel

prayed that back wages should not be granted in case

reinstatement part is upheld.

11. Mr. Arun K. Sinha learned counsel on behalf of the

respondent-employee has relied upon the decision of this

Court in Ramesh Ahluwalia v. State of Punjab & Ors.

(2012) 12 SCC 331. He has also pressed into service the

decision in Raj Kumar v. Director of Education & Ors.

(2016) 6 SCC 541 to submit that approval of concerned 6

Government authority was necessary for appointment, it

was necessary for termination also as found by the High

Court, the termination was illegal and void. Back wages

and reinstatement have been rightly ordered as no

departmental enquiry was conducted before passing the

order of termination.

12. Firstly, we examine the question with respect to

the maintainability of the Writ Application. It has been

clearly averred in the Writ Application that the

appointment was, at first instance, on probation for two

years. It is not in dispute that in the instant case that

approval of the appointment had been made with

retrospective effect 1st January 2001 and no approval

admittedly has been obtained for the purpose of removal

passed on 20.2.2001. There is a clear pleading in the

Writ Application that the approval was necessary, its

denial in reply is evasive. No such approval had been

obtained in the instant case. It is apparent that the

Government has also pleaded in its reply that approval of

appointment was made necessary considering the

arbitrariness in the appointments which was prevailing,

and once approval for appointment was necessary there is

no doubt that approval for removal was also necessary,

which was not obtained in the instant case. 7

13. In Raj Kumar v. Director of Education & Ors.(supra)

this Court held that Section 8(2) of the Delhi School

Education Act, 1973 is a procedural safeguard in favour

of employee to ensure that order of termination or

dismissal is not passed without prior approval of

Director of Education to avoid arbitrary or unreasonable

termination/dismissal of employee of even recognised

private school. Moreover, this Court also considered the

Objects and Reasons of the Delhi School Education Act,

1973 and came to the conclusion that the termination of

service of the driver of a private school without

obtaining prior approval of Director of Education was bad

in law. This Court observed:

“45. We are unable to agree with the contention advanced by the learned counsel appearing on behalf of the respondent School. Section 8(2) of the DSE Act is a procedural safeguard in favour of an employee to ensure that order of termination or dismissal is not passed without the prior approval of the Director of Education. This is to avoid arbitrary or unreasonable termination or dismissal of an employee of a recognised private school.”

14. This Court has laid down in Raj Kumar v. Director

of Education & Ors. (supra) that the intent of the

legislature while enacting the Delhi School Education

Act, 1973 (in short, ‘the DSE’) was to provide security

of tenure to the employees of the school and to regulate

the terms and conditions of their employment. While the

functioning of both aided and unaided educational 8

institutions must be free from unnecessary Governmental

interference, the same needs to the reconciled with the

conditions of employment of the employees of these

institutions and provision of adequate precautions to

safeguard their interests. Section 8(2) of the DSE Act is

one such precautionary safeguard which needs to be

followed to ensure that employees of educational

institutions do not suffer unfair treatment at the hands

of the management.

15. Writ application was clearly maintainable in view

of aforesaid discussion and more so in view of the

decision of this Court in Ramesh Ahluwalia v. State of

Punjab & Ors. (supra) in which this court has considered

the issue at length and has thus observed:

“13. in the aforesaid case, this Court was also considering a situation where the services of a Lecturer had been terminated who was working in the college run by the Andi Mukti Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust. In those circumstances, this Court has clearly observed as under:(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 of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or 9

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

22. Here again, we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the Statute.

Commenting on the development of this law, Professor de Smith states:'To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'.

Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellant on the maintainability of the writ petition.

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

14. In view of the law laid down in the aforementioned judgment of this Court, the judgment of the learned Single Judge as also the Division Bench of the High Court cannot be sustained on the proposition that the writ petition would not maintainable merely because the respondent institution is a purely unaided private educational institution. The appellant had specifically taken the plea that the respondents perform public functions i.e. providing education to children in their institutions throughout India.“ 10

(emphasis supplied)

It is apparent from the aforesaid decisions that

the Writ Application is maintainable in such a matter

even as against the private unaided educational

institutions.

16. Learned Senior Counsel relied upon the decision of

this Court in Committee of Management, Delhi Public

School & Anr. v. M.K. Gandhi & Ors. (supra) wherein the

question of termination of services of teachers was

involved. The Committee of Management filed a Civil

Appeal in this Court against the decision of Allahabad

High Court contending that the Delhi Public School,

Ghaziabad was not a 'State' within the meaning of Article

12 of the Constitution. The question involved was that

termination of service of teachers of a private school

without conducting the enquiry was contrary to bye-laws.

This Court held that the Writ Application was not

maintainable as a private school is not 'State' under

Article 12 of the Constitution. It is pertinent to

mention here that the question of approval by Government

authority was not involved in M.K. Gandhi (Supra). Thus,

this decision is distinguishable.

17. In Satimbla Sharma & Ors. v. St. Paul's Senior 11

Secondary School & Ors. (supra) relied upon on behalf of

the appellant the question involved was whether an

unaided private institution is subject to public law

application and to what extent. The concept of equal pay

for equal work was invoked for unaided institutions on

the basis of parity with respect to the teachers in the

Government and Government-aided schools. It was observed

that the right to equality enshrined in Articles 14 and

39(d) of Constitution are available against 'State' only.

It cannot be claimed against unaided private minority

school. The teachers of the government school are paid

mostly out of the Government funds and teachers of

private unaided schools are paid out of fees and other

resources of the private school. No relief can be given

in absence of statutory provisions in favour of teachers

in unaided private educational institutions. The school

in question was not receiving any grant in aid from the

Government of Himachal Pradesh and there was a provision

in favour of teachers enabling them to claim an equal

salary. The decision is wholly distinguishable on facts

and proposition of law laid down has different field to

operate.

18. Similarly, in Sushmita Basu & Ors. v. Ballygunge

Shiksha Samity & Ors. (supra) the appellant was working

in a recognised private educational institution in the 12

State of West Bengal. The schools were not receiving

grants in aid from the government but were getting

dearness allowance component of the approved teachers

working in the school. The issue was with respect to the

applicability of recommendation of the First Pay

Commission and that of Second Pay Commission though there

was no statutory provision or even government order

directing private unaided educational institutions to

implement the recommendations of the Third Pay

Commission, they were implemented by the schools as part

of their agreement with the teachers. Though the

management also implemented the recommendations of the

Third Pay Commission in the sense that the salaries of

the teachers were hiked in terms of the said report, the

institution refused to give retrospective effect to the

enhancement. The institution refused to give effect to

the recommendations of the Third Pay Commission

retrospectively w.e.f. 1.1.1998. Ultimately, this Court

observed in Sushmita Basu (supra) that the Writ of

Mandamus by the Court issued against the private

institutions would be justified only if a public law

element is involved.

19. The factual matrix in Sushmita Basu (supra) was

different. It was with respect to the parity with the

Government aided institution and the teachers working in 13

unaided institutions and schools were not bound to

implement recommendations of Pay Commission. No such

proposition is involved in the present matter. Hence, the

decision has no application to the instant case.

20. In view of the aforesaid discussion, we have no

hesitation to hold that the Writ Application is

maintainable as rightly held by the Division Bench of the

High Court.

21. Coming to the question of relief of reinstatement

and back wages, in view of the factual matrix of the

instant case, we have taken note of the fact that the

approval of the concerned authorities was not obtained

and stigmatic order of dismissal was passed in the most

arbitrary manner. It is not in dispute that no

departmental enquiry was held.

22. In the case of Anoop Jaiswal v. Government of India

& Anr. (1984) 2 SCC 369, the appellant was undergoing

training as a probationer. On a particular day, all the

trainees arrived late at the place wherein P.T./unarmed

combat practice was to be conducted. An enquiry was

initiated and the impugned order of discharge under Rule

12(b) of the IPS (Probation) Rules, 1954 on the ground of

his unsuitability for being a member of the IPS. It was

held that the order was punitive in nature which in 14

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 the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis of foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution.”

23. In the present case, the employee has served for

five years before dismissal from the service by a

stigmatic order, passed without holding an enquiry, we

cannot entertain the submission raised by learned Senior

counsel for the Appellant-School that back wages should

be denied. The manner in which termination had been made

was clearly arbitrary and the order was illegal and void

and thus back wages should follow.

24. Resultantly, the Civil Appeal is dismissed.

No costs.

….................J. [ARUN MISHRA]

….................J. [NAVIN SINHA] NEW DELHI;

FEBRUARY 14, 2019.