Chattisgarh High Court
Santavana Mukharjee vs State Of Chhattisgarh on 26 June, 2025
1
SMT
NIRMALA
RAO
2025:CGHC:28132
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 4785 of 2017
1 - Vidyakant Tripathi S/o Late Gopinth Tripathi, Aged About 60 Years R/o Itta
Bhatthadafai, Haldibadi, Chirmiri, District Koriya, Chhattisgarh., Chhattisgarh.
--- Petitioner(s)
versus
1 - State Of Chhattisgarh Through The Secretary, Department Of Education,
Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh.,
Chhattisgarh
2 - The Collector, Koriya, Chhattisgarh., District : Koriya (Baikunthpur),
Chhattisgarh
3 - Block Education Officer, Koriya, District Koriya, Chhattisgarh., District :
Koriya (Baikunthpur), Chhattisgarh
4 - Principal/ Authorized Officer, Saraswati Shiksha Sansthan, Chhattisgarh,
Behind Ayurvedik College, Saraswati Vihar, Raipur, Chhattisgarh., District :
Raipur, Chhattisgarh
--- Respondent(s)
With
WPS No. 4885 of 2017
1 - Santavana Mukharjee S/o Late Dilip Mukharjee, Aged About 61 Years R/o
Azad Nagar Godripara, Chirmiri, District Koriya, Chhattisgarh, Chhattisgarh.
--- Petitioner(s)
versus
1 - State Of Chhattisgarh Through The Secretary, Department Of Education,
Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh,
Chhattisgarh
2 - The Collector, Koriya, Chhattisgarh, District : Koriya (Baikunthpur),
Chhattisgarh
3 - Block Education Officer, Koriya, District- Koriya, Chhattisgarh, District :
Koriya (Baikunthpur), Chhattisgarh
4 - Principal/ Authorized Officer, Saraswati Shiksha Sansthan, Chhattisgarh,
2
Behind Ayurvedik College, Saraswati Vihar, Raipur, Chhattisgarh, District :
Raipur, Chhattisgarh.
--- Respondent(s)
With
WPS No. 4921 of 2017
1 - Bhagwan Das Gupta S/o Late Shri Ramvishal Gupta, Aged About 60
Years R/o Ward No.17, Magzin Dafai, Haldibadi Chirmiri, District Koriya,
Chhattisgarh, Chhattisgarh
--- Petitioner(s)
versus
1 - State Of Chhattisgarh Through The Secretary, Department Of Education,
Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh,
Chhattisgarh
2 - The Collector, Koriya, Chhattisgarh, District : Koriya (Baikunthpur),
Chhattisgarh
3 - Block Education Officer, Koriya, District- Koriya, Chhattisgarh, District :
Koriya (Baikunthpur), Chhattisgarh
4 - Principal/ Authorized Officer, Saraswati Shiksha Sansthan, Chhattisgarh,
Behind Ayurvedik College, Saraswati Vihar, Raipur, Chhattisgarh, District :
Raipur, Chhattisgarh.
--- Respondent(s)
With
WPS No. 5626 of 2017
1 - Subhash Singh S/o Chandrashekhar Singh Aged About 61 Years R/o
Kalshidafai, Haldibadi, Chirmiri, District Koriya Chhattisgarh. , Chhattisgarh
--- Petitioner(s)
versus
1 - State Of Chhattisgarh Through The Secretary Department Of Education
Mantralaya Mahanadi Bhawan Naya Raipur District Raipur Chhattisgarh. ,
Chhattisgarh
2 - The Collector, Koriya Chhattisgarh. , District : Koriya (Baikunthpur),
Chhattisgarh
3 - Block Education Officer, Koriya District Koriya Chhattisgarh. , District :
Koriya (Baikunthpur), Chhattisgarh
4 - Principal / Authorized Officer, Saraswati Shiksha Sansthan Chhattisgarh ,
Behind Ayurvedik College, Saraswati Vihar Raipur Chhattisgarh. , District :
Raipur, Chhattisgarh.
--- Respondent(s)
3
With
WPS No. 4616 of 2018
1 - Smt. Pooja Yadav W/o W/o Shriram Yadav Aged About 34 Years R/o
Bayron Bazar, Behind Saint Paul School, Raipur, District Raipur,
Chhattisgarh., District : Raipur, Chhattisgarh.
--- Petitioner(s)
versus
1 - Holy Cross Senior Secondary School Through The Principle, Byron
Bazar, Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
2 - District Education Officer, Pension Bada, Raipur, District Raipur,
Chhattisgarh., District : Raipur, Chhattisgarh.
--- Respondent(s)
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For respective Petitioners : Shri Sudeep Johri, Shri Punit Ruparel and Shri Kalpesh Ruparel, Advocates.
For Respondents/State : Ms. Shailja Shukla, Dy.G.A., Shri Shubham Bajpayee and Shri Dashrath Prajapati, P.L.
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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 26.06.2025
1. In WPS Nos.4785 of 2017, 4885 of 2017, 4921 of 2017 & 5626 of 2017, the petitioners have challenged the order dated 1.8.2017, wherein it was stated that they would be superannuated on completion of 60 years of age.
2. The facts, in a nutshell, are that the petitioners were working as Acharya (Clerk) under respondent No.4/ Principal Saraswati Shiksha Sansthan, Raipur. Their services were regularized. Pursuant to the service rules of Saraswati Shiksha Sansthan, Chhattisgarh, respondent No.4 issued orders to the effect that the petitioners would retire from their services after completion of 60 years of age. The petitioners have claimed that under the earlier service rules, effective 4 from the 1st July, 2005, the age of retirement was 62 years according to Rule 13. It is also pleaded that according to the Chhattisgarh Shaskiya Sevak (Adhivarshiki-Ayu) (Sanshodhan) Ordinance, 2013, the retirement age of a government servant is 62 years. It is also pleaded that the petitioners were forced to superannuate prior to the completion of 62 years, which is illegal and arbitrary. Shri Punit Ruparel, Advocate would submit that when the petitioners joined the service, the Rules of 2017, which provides for retirement at 60 years of age, was not in existence; therefore, the order issued by respondent No.4 forcing their retirement is illegal, arbitrary and violative of Articles 14 & 16 of the Constitution of India. With regard to the maintainability of the writ petition, he would submit that the Saraswati Shishu Mandir Schools were established according to the Rules framed by the State Government, therefore, the action of respondent No.4 is amenable to the writ jurisdiction.
3. The facts of WPS No.4616 of 2018 are that the petitioner was appointed as a Teacher on probation for a period of nine months under respondent No.1 - Holy Cross Senior Secondary School, Raipur. The petitioner was declared a permanent Teacher after completion of the probation period. It is pleaded that she was granted maternity leave in March, 2012 on an application moved by her. She was granted maternity leave on the principle of 'No Work No Pay' vide order dated 6.3.2012. It is further pleaded that the petitioner moved applications to resume her services on 14.6.2012 and 22.6.2012 and those applications were replied to by respondent No.1 on 20.6.2012 & 22.6.2012, but she was not permitted to resume her services. It is also pleaded that the petitioner moved an application for another period of 5 maternity leave and other leaves in 2015-16. Vide order dated 20.3.2018, her services were terminated.
4. Shri Sudeep Johri, Advocate would submit that respondent No.1, being an unaided School is covered by the Chhattisgarh Ashaskiya Shikshan Sanstha (Adhyapakon tatha Anya Karmachariyon Ko Padachyut Karne/ Sewa Se Hatane Sambandhi Prakriya) Niyam, 1983 (for short 'Rules, 1983'), which prescribe a procedure for termination of services under Rules 3 to 13. He would contend that respondent No.1, without issuing a show-cause notice, article of charge, or conducting the inquiry, imposed a major penalty.
5. With regard to the maintainability of the writ petition, he would contend that the writ petition is maintainable as the order of termination was passed without affording any opportunity of hearing and is contrary to the Rules of 1983. He would further submit that though respondent No.1 is a non-governmental institution but the service conditions of the petitioner were governed according to the Rules, 1983. He would also submit that in the case of Marwari Balika Vidyalaya vs. Asha Srivastava, (2020) 14 SCC 449, the Hon'ble Supreme Court has held that a writ petition is maintainable against the private schools receiving grant-in-aid because imparting education is a public function, even for unaided institutions. He would refer to paragraph 15 to buttress his submission.
6. On the other hand, learned counsels for the respondents would oppose the submissions made by counsel for the respective petitioners. They would submit that the petitioners have filed these writ petitions against the unaided schools/institutions. They would further submit that the writ petitions filed by the petitioners are not 6 maintainable in light of the recent decisions of the Hon'ble Supreme Court rendered in the matter of St. Mary's Education Society and Another vs. Rajendra Prasad Bhargava and Others, (2023) 4 SCC 498 and Army Welfare Education Society, New Delhi vs. Sunil Kumar Sharma and Others, 2024 SCC OnLine SC 1683.
7. Heard counsel for the parties and perused the documents present on the record.
8. In WPS Nos.4785 of 2017, 4885 of 2017, 4921 of 2017 & 5626 of 2017, the petitioners have challenged the orders issued by respondent No.4/ Principal whereby, they were communicated the date of their retirement on completion of 60 years of age. In these petitions, the petitioners were appointed between 1982 and 1992. The petitioners have pleaded that according to the rules of Saraswati Shiksha Sansthan, Chhattisgarh effective from the 1st July, 2005, the age of retirement was 62 years whereas, vide amendment effective from the 1st July, 2017, the age of retirement was reduced from 62 years to 60 years. The petitioners have not produced the service rules which was in force at the time of their appointment. Since they were appointed before 2005, the service rules of 2005 would not apply. Furthermore, the petitioners have already retired and thereafter preferred these petitions.
9. In WPS No.4616 of 2018, the petitioner informed vide order dated 20.3.2017 that she would not be allowed to teach in the school in the upcoming session starting from 1st April, 2018. The petitioner was appointed vide order dated 25.7.2007. Clause 6 of the order of appointment clearly states that the services of the petitioner would be governed according to by-laws framed by the management from time 7 to time and a copy of the service rules was provided to the petitioner. It is not in dispute that respondent No.1 is an unaided Institution. The petitioner moved an application for the grant of maternity leave from February, 2012 till April, 2012 and also annexed a copy of the medical certificate. Respondent No.1 vide order dated 6.3.2012, advised the petitioner to take a rest but it was clarified that the leave would be on a 'No Work No Pay' basis. Vide letter dated 20.6.2012, the petitioner was informed that she had taken leave of 88 days out of 202 working days and was directed to resume her duties. Vide letter dated 22.6.2012, the petitioner was informed by the management that she had taken leave without proper intimation. Vide letter dated 26.7.2012, the petitioner clarified the facts but no attempt was made to resume the services. Vide letter dated 24.9.2012, the petitioner sought permission to resume her services. Vide letter dated 17.5.2013, the petitioner informed the management that she took leave on account of her child's health issues and to appear in the M.A. English (Previous year) examination. Taking into consideration the conduct of the petitioner, the management decided to terminate her services according to its bylaws.
10. In the matter of Marwari Balika Vidyalaya (supra), a writ petition before the High Court was filed by an employee of the institution against the private school receiving grant-in-aid to the extent of dearness allowance and this fact is evident from a bare reading of paragraph 1 of the said judgment. After the appointment of respondent No.1 in that case namely Asha Srivastava, the requisite papers were referred to the District Inspector of Schools seeking approval and those papers were further referred to the Director of 8 School Education, West Bengal for his opinion. The Hon'ble Supreme Court in that premises held that the writ application would be maintainable. The relevant paragraph 15 is reproduced herein below:-
"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 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 9 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 decision that the Writ Application is maintainable in such a matter even against the private unaided educational institutions.
11. In the matter of St. Mary's Education Society and Another (supra), the Hon'ble Supreme Court has considered the law laid down in the matter of Marwari Balika Vidyalaya (supra). It is held that in the matter of Marwari Balika Vidyalaya (supra), the approval of the State Government was required, and the facts of the case were distinguishable. It was further noted that the school in Marwari Balika Vidyalaya (supra), was receiving grant-in-aid to the extent of dearness allowance. In paragraph 75.3, the Hon'ble Supreme Court has held that while a body may be discharging public functions or performing public duty and thus its actions becoming amenable to the judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 of the Constitution of India in respect of the matter relating to 10 service where they are not governed or controlled by the statutory provisions. The relevant paragraphs 63, 64 & 75.3 are reproduced herein below:-
"63. In context with Marwari Balika Vidhyalaya (supra), we remind ourselves of the Bylaw 49(2) which provides that no order with regard to the imposition of major penalty shall be made by the disciplinary authority except after the receipt of the approval of the disciplinary committee. Thus unlike Marwari Balika Vidhyalaya (supra) where approval was required of the State Government, in the case on hand the approval is to be obtained from the disciplinary committee of the institution. This distinguishing feature seems to have been overlooked by the High Court while passing the impugned order.
64. In Marwari Balika Vidhyalaya (supra), the school was receiving grantinaid to the extent of dearness allowance. The appointment and the removal, as noted above, is required to be approved by the District Inspector of School (Primary Education) and, if any action is taken dehors such mandatory provisions, the same would not come within the realm of private element.
75.3. It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely 11 within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service."
12. Army Welfare Education Society (supra) has considered the law laid down by the Hon'ble Supreme Court in the matter of K.K. Saksena v. International Commission on Irrigation & Drainage, (2015) 4 SCC 670 and held that if a person or authority is "State" within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, the writ would not lie to enforce private law rights. The Hon'ble Supreme Court in paragraph 42 held that the school run by the Appellant Society imparts education. Imparting education involves public duty and therefore public law elements could also be said to be involved. However, the relationship between the employee and the society is that of an employee and a private employer arising out of a private contract. If there is a breach of a covenant of a private contract, the same does not touch any public law element. The relevant paragraph 42 is reproduced herein below:-
"42. In view of the aforesaid, nothing more is required to be discussed in the present appeals. We are of the view that the High Court committed an egregious error in entertaining the writ petition filed by the respondents herein holding that the appellant society is a "State" within Article 12 of the Constitution. Undoubtedly, the school run by the Appellant Society imparts education. Imparting education involves public duty and therefore public law element could also be said to be involved. However, the relationship between the respondents herein and the appellant society is that of an 12 employee and a private employer arising out of a private contract. If there is a breach of a covenant of a private contract, the same does not touch any public law element. The school cannot be said to be discharging any public duty in connection with the employment of the respondents."
13. With regard to the Rules, 1983, Shri Sudeep Johri, Advocate could not demonstrate that the Rules of 1983 would apply in the matter of the petitioner, particularly when the order of appointment categorically states that her services would be governed by the bye-laws framed by the institution. Furthermore, the educational institutions in question are unaided and the role of the State is not involved either in the appointment, approval of appointment, or in any disciplinary action or conditions of service including the age of retirement. Applying the law laid down by the Hon'ble Supreme Court in the matter of St. Mary's Education Society and Another (supra) and in Army Welfare Education Society (supra), in my opinion, no case is made out for interference.
14. Accordingly, these petitions fail and are hereby dismissed. No cost(s).
Sd/-
(Rakesh Mohan Pandey) Judge Nimmi