Full Judgment Text
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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
st nd
concerned seeking approval on 31 March 1995. On 2
Signature Not Verified
Digitally signed by R
NATARAJAN
Date: 2019.03.01
12:04:51 IST
Reason:
January 1997 concerned District Inspector of Schools
(Primary Education), Calcutta referred those papers to
the Director of School Education, West Bengal for his
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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
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.
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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
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.
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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.
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
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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
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
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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
st
retrospective effect 1 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.
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,
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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
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
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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
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
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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.“
(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
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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
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
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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
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
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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
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
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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
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
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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.
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ITEM NO.101 COURT NO.5 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.9166/2013
MARWARI BALIKA VIDYALAYA Appellant(s)
VERSUS
ASHA SRIVASTAVA & ORS. Respondent(s)
Date : 14-02-2019 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE ARUN MISHRA
HON'BLE MR. JUSTICE NAVIN SINHA
For Appellant(s) Mr. Sanjiv Sen, Sr. Adv.
Mr. Shabyashachi Patra, Adv.
Mr. Sayan Ray, Adv.
Mr. Soumo Palit, Adv.
M/S. Khaitan & Co.
For Respondent(s) Mr. Arun K. Sinha, AOR
Mr. Swastik Verma, Adv.
Mr. Sinha Shrey Nikhilesh, Adv.
Mr. Suhaan Mukerji, Adv.
Ms. Astha Sharma, Adv.
Mr. Amit Verma, Adv.
Mr. Dimple Nagpal, Adv.
M/S. PLR Chambers And Co.
UPON hearing the counsel the Court made the following
O R D E R
The Civil Appeal is dismissed in terms of the
signed reportable order.
Pending application, if any, stands disposed of.
(ASHA SUNDRIYAL) (JAGDISH CHANDER)
COURT MASTER BRANCH OFFICER
[signed reportable order is placed on the file]