Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21011 of 2012 ====================================================== Vidyawati Kumari Wife Of Sri Sachida Nand Mishra Resident Of Village And P.O.- Sishotar, P.S.- Sikandarpur, District- Balia .... .... Petitioner Versus 1. The State Of Bihar Through The Principal Secretary Human Resources Development Department, Government Of Bihar, Patna 2. The Director, Secondary Education, Govt. Of Bihar, Budh Marg, Patna 3. The District Education Officer, Siwan 4. The Deputy Director, Secondary Education, Govt. Of Bihar, Budh Marg, Patna 5. The Secretary Of Governing Body Of Ramashis Verma Balika Uchch Vidyalaya, Bhithi, Siwan 6. The Headmaster, Ramashis Verma Balika Uchch Vidyalaya, Bhithi, Siwan .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Bipin Bihari Singh, Adv. For the Respondent/s : Mr. Manoj Priaydarshi SC17 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 31-10-2013 Heard learned counsel for the parties as with regard to the following relief prayed in this writ application:- "For quashing the order as contained in memo no. 71/12-715 Patna dated 19.04.2012 passed by Shri Ajit Kumar, Deputy Director, Secondary Education, Govt. of Bihar whereby and whereunder without considering the argument and the material available on record had disposed of their claim by holding that the claim made therein shall be appropriately placed after the constituting
Legal Reasoning
Patna High Court CWJC No.21011 of 2012 (2) dt.31-10-2013 2 the Tribunal for the said purpose at the District level." 2. Assailing the impugned order passed by the Deputy Director, Secondary Education, rejecting the claim of the petitioner for payment of salary dated 19.4.2012 as contained in
Legal Reasoning
Annexure-11, learned counsel for the petitioner has submitted that when there was a direction by this Court in the order dated 3.12.2010 in CWJC No. 2107 of 2010 and CWJC No. 2215 of 2010 to decide the issue of entitlement of payment of the salary of the petitioner, the said authority was not justified in leaving the matter undecided. In this regard, he has also submitted that once the Government had given the grant-in-aid to the school of the petitioner, the authorities of the Education Department could not have left the matter in lurch on the ground of proposed constitution of the Appellate tribunal. 3. Learned counsel for the State on the other hand has submitted that this Court in the order dated 3.12.2010 in CWJC No. 2107 of 2010 filed by this very petitioner had simply directed the Deputy Director, Secondary Education to examine the grievance of non-payment of salary to the petitioner despite release of financial aid to the school by the government. Learned counsel for the State in fact has also submitted that once the Patna High Court CWJC No.21011 of 2012 (2) dt.31-10-2013 3 Deputy Director of Secondary Education had found that the employer of the petitioner namely Private Managing Committee of the school in question had already terminated the services of the petitioner, he could not have gone into the issue of correctness of such decision taken by the private Managing Committee, inasmuch as, the government decision was confined for payment of salary from the released fund only in respect of such teachers who were continuing in service of the school. According to him, the aspect as with regard to appointment and continuation in a privately managed school was well within the domain of Deputy Director and consequently it is also not capable of being adjudicated in a writ jurisdiction, inasmuch as, neither the Managing Committee of the school is a ‘State’ within the meaning of Article 12 of the Constitution of India nor the Teachers of the privately managed school can seek any relief in relation to their service condition including their termination of service and/or payment of salary. 4. This Court finds merit in the submission of the learned counsel for the State for more than one reason. Firstly in the order of this Court dated 3.12.2010, there was only a direction to the Deputy Director of Secondary Education to examine the grievance with regard to non-payment of salary to the petitioner Patna High Court CWJC No.21011 of 2012 (2) dt.31-10-2013 4 and the Deputy Director after examining the materials on record had held as follows:- “ekuuh; mPp U;k;ky; esa nk;j ;kfpdk la[;k& 2107 ,oa 2215@2010 dk fu’iknu ekuuh; mPp U;k;ky;] iVuk }kjk fnukad 03&12&2010 dks fu’ikfnr djrs gq, funsf”kr fd;k x;k gS fd ;kfpdkdrkZvksa ds nkos dks fu’ikfnr fd;k tk;A foHkkxh; ladYi la[;k& 538] fnukad 19&05&2009 ds vkyksd esa jkek”kh’k oekZ ckfydk mPp fo|ky;] jks”ku uxj] fHkV~Bh] floku esa vuqnku gsrq nkok fd;k x;kA QyLo:i foHkkx }kjk 4]01]000@& …pkj yk[k ,d gtkj :i;s ek=‰ jkf”k vuqnku miyC/k djk;h x;hA Jherh ique dqekjh ,oa Jherh fo|korh dqekjh ;kfpdkdrkZvksa }kjk dze”k% 01&04&1989 ,oa 01&01&1987 ls fu;qDr gS rFkk le;≤ ij mPp Lrjh; dk;kZy;ksa es budk uke Hkstk x;k gSA mUgkasus ;g Hkh vafdr fd;k gS fd lkft”k ds rgr bu yksxksa dks gVk;k x;k gSA fo|ky; izca/k lfefr }kjk mDr fu;qfDr dks lEiq’V fd;k gSA fo|ky; izaca/k lfefr us crk;k fd mDr nksuksa f”kf{kdk,a yEch vof/k ls vuqifLFkfr gsrq ekSf[kd ,oa fyf[kr lwpuk nh x;hA f”kf{kdkvksa }kjk larks’kizn tcko u nsus ds dkj.k izca/k lfefr dh dk;Zokgh la[;k&37] fnukad 17&08&2008 ,oa 38] fnukad 07&09&2008 }kjk lsok lekIr dh x;hA izca/k lfefr }kjk miLFkkfir mifLFkfr iath eas 2002 ls 2007 ,oa 2008 esa Jherh fo|kofr dqekjh ds mifLFkfr dkWye esa vuqifLFkfr vafdr gSA fnukad 07&09&2008 dks fo|ky; izca/k lfefr }kjk lsok lekfIr dk vk”k; vafdr gSA blh vuq:i Jherh ique dqekjh ds mifLFkfr dkWye esa vuqifLFkfr vafdr gS vkSj fnukad 15&07&2008 dks fo|ky; izca/k lfefr }kjk lsok lekfIr dk vk”k; vafdr gSA foHkkxh; ladYi la[;k& 538] fnukad 19&05&2009 Patna High Court CWJC No.21011 of 2012 (2) dt.31-10-2013 5 }kjk for jfgr laLFkkuksa dks forh; lgk;rk izfr lQy Nk=@Nk=k ds vk/kkj ij fn;k tkrk gSA ladYi esa ;g funsf”kr gS fd lacaf/kr laLFkku ds fufnZ’V izca/k lfefr@U;kl] fuxfer fudk;@”kklh fudk; ds izca/k lfefr }kjk fo|ky; ds f”k{kd@f”k{kdsrj deZpkfj;ksa ds chp vuqnku fn;k tkuk gSA bu laLFkkuksa dks vuqnku nsus dk eq[; mn~ns”; izca/k lfefr dks vkfFkZd lgk;rk miyC/k djk;k tkuk gSA vFkkZr f”k{kd@f”k{kdsrj deZpkfj;ksa dks vuqnku miyC/k djkus dh ftEesokjh izca/k lfefr dh gSA foHkkx }kjk “kSf{kd l= 2008 ds fy, ;g funsf”kr fd;k x;k Fkk fd 26&03&2008 rd fu;qDr f”k{kd@f”k{kdsrj deZpkfj;ksa dks gh vuqnku ns; gksxkA dkykarj esa “kSf{kd l= 2009 ds fy, funsf”kr fd;k x;k fd 26&03&2008 ds ckn fof/kor :i ls fu;qDr f”k{kd@f”k{kdsrj deZpkfj;ksa dks vuqnku ns; gksxkA foHkkx }kjk vuqnkfur laLFkkvksa ds f”k{kd@f”k{kdsrj deZpkfj;ksa dks gVk;s tkus ds laca/k esa gLr{ksi ugha fd;k tk jgk gS] D;ksafd bu laLFkkuksa dks izfr lQy Nk=@Nk=kvksa ds vk/kkj ij vuqnku fn;k tkuk gSA foHkkx }kjk ,sls ekeys ds fujkdj.k gsrq ftyk Lrj ij xfBr vihyh; izkf/kdkj dks iquZxfBr djus dh dkjZokbZ izfdz;kUrxZr gSA vr% ;kfpdkdrkZvksa dks funsf”kr fd;k tkrk gS fd izkf/kdkj ds iquZxBu ds mijkUr viuk i{k j[ksaxsA** 5. From bare perusal of the aforesaid order of the Deputy Director, Secondary Education, it would be clear that the Managing Committee of the school had taken a categorical stand before the aforesaid departmental authority that the services of the petitioner were terminated by the resolution of the Managing Committee dated 17.8.2008 and 7.9.2008 and to support this, the attendance register was also produced by the Managing Patna High Court CWJC No.21011 of 2012 (2) dt.31-10-2013 6 Committee to show that the petitioner was absent in the school from the year 2002 onwards which ultimately led to termination of services by an order dated 7.9.2008. 6. In that view of the matter, when a decision has been taken for termination of services of the petitioner by the appointing authority namely the Managing Committee of a private school the same in turn would also disentitle her from getting salary from the fund released by the Government. Thus the core of the issue will be as to whether such order of termination could be interfered by the Deputy Director of Secondary Education? 7. As noted above, the school of the petitioner, namely, Ramashis Verma Girls High School, Roshan Nagar, Siwan is a private school which is only receiving grant-in-aid from the State Government. The Managing Committee of this school, therefore, is the appointing authority and its decision to terminate the service of the petitioner on account of her absence from the school since 2002 cannot be interfered with in writ jurisdiction. This is precisely what has been also held by the Deputy Director of Secondary Education who has found that the service condition of the teachers of the school receiving grant-in-aid cannot be interfered by the State Government and the role of the State Government is only confined to the release of grant for payment of Patna High Court CWJC No.21011 of 2012 (2) dt.31-10-2013 7 salary to the working teachers of the school. 8. As a matter of fact, the Deputy Director of Secondary Education has not closed the chapter and has gone on to make an observation that upon constitution of the district level Appellate Tribunal as with regard to dealing the service condition of the privately managed school, the petitioner could again raise this issue before the Tribunal. 9. In view of the fact that till date, the Government has however not constituted any Tribunal for privately managed school and the petitioner is out and out an employee of a privately managed school whose appointing authority is the Managing Committee of the school, the view taken by the Deputy Director of Secondary Education in the impugned order cannot be said to be bad either on fact or in law. 10. It is this aspect of the matter which has also been decided by the Division Bench of this Court in the case of Santosh Kumar Vs. The State of Bihar & Ors. reported in 2013(1)PLJR 269, wherein it has been held that such a writ application for enforcing private right arising out of a contract of service of a teacher appointed by the Managing Committee of a school receiving grant-in-aid will not lie. The Division Bench while taking such view has also considered earlier judgments of the Patna High Court CWJC No.21011 of 2012 (2) dt.31-10-2013 8 Apex Court and this Court and has gone to hold as follows:- “15. In view of discussions made above and after noticing the various authorities citied by both the parties, we are of the considered view that earlier view of this court as reflected by Division Bench judgments in the case of Smt. Radha Kumari Singh (1977 PLJR 110) and Chandra Nath Thakur [1999(1) PLJR 529] as well as a Full Bench judgment in the case of Smt. Manju Devi (1987 PLJR 962) does not require any reconsideration. We would, however, like to point out that earlier judgments indicated above, particularly in the case of Smt. Radha Kumari Singh (1977 PLJR 110), it was clearly indicated that writ petition against a non-statutory body such as Governing Body of a private college was not maintainable as there was no allegation of infraction of any statutory provision. In a given case where in exercise of statutory powers the University granting affiliation to a private college imposes reasonable conditions governing teachers or employees of an affiliated college, then in case of violation of Statutes or Rules of the University by an affiliated college a person having corresponding right may be entitled to seek mandamus. It cannot be said in absolute terms that a writ petition is not maintainable against a private aided college even if it is a minority institution but the duty sought to be imposed upon a private body through mandamus must be of a public nature otherwise the affected employee will be denied relief in writ jurisdiction. The law laid down by the Apex Court in the case Shri Anadi Mukta Sadguru Shree Muktajee Vandasji-Swami Patna High Court CWJC No.21011 of 2012 (2) dt.31-10-2013 9 Suvarna Jayanti Mahotsav Smarak Trust and Others (AIR 1989 SC 1607) is based upon distinction between private rights and duties on the one side and rights and duties of public nature on the other side. It has been established by a long line of precedents that writ jurisdiction provides remedy in matters relating to public domain and for enforcement of rights flowing from Constitution or Statutes. In our view the term – “writ petition is not maintainable” is not fully apt rather proper expression should be – “writ shall not lie” when a writ petition is filed for seeking enforcement of duties other than public duties against a person or authority which is not “State” within Article 12 of Constitution.” 11. In view of the aforesaid discussions and the binding precedent of the Division Bench in the case of Santosh Kumar (supra), there will be no difficulty in holding that the present writ application as against the action of the Managing Committee in terminating the service of the petitioner will not lie before this Court. 12. That being so, this application is wholly misconceived and is, accordingly, dismissed but nothing said in this order would come in the way of petitioner moving before the Tribunal as observed in the impugned order. Rishi/- (Mihir Kumar Jha, J)