Vishwa Nath Mishra vs Dr.Virendra Swarup Memorial ...
2021 Latest Caselaw 1595 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 

 
Case :- SERVICE SINGLE No. - 22832 of 2020
 

 
Petitioner :- Vishwa Nath Mishra
 
Respondent :- Dr.Virendra Swarup Memorial Trust Thru.Secy. & Ors.
 
Counsel for Petitioner :- In Person
 
Counsel for Respondent :- C.S.C.,A.K. Srivastava,Kali Prasad Singh
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Vishwa Nath Mishra who appears in person, learned Standing Counsel, Sri Rishi Raj for opposite party no. 1 and Sri K.P. Singh, learned counsel for opposite party no. 4.

Since the objection of maintainability of the writ petition was raised by the learned counsel for the opposite parties, therefore, the petitioner has placed reliance of the judgment and order dated 26.2.2019 passed by the Full Bench of this Court in Writ- A No. 63708 of 2014 : Roychan Abraham vs. State of U.P. and three others. By means of para 2 of the aforesaid judgment the question under reference has been indicated. Para 2 thereof is being reproduced herein below:

"2. We have carefully gone through the pleadings of the writ petition with the assistance of learned counsel for the parties and the referring order. In our opinion the following questions require to be answered:

(i) whether private institutions imparting education perform public duty, a State function, making them amenable to judicial review under Article 226 of the Constitution of India;

(ii) whether the Full Bench decision rendered in M.K. Gandhi and Division Bench judgment in Anjani Kumar Srivastava requires to be revisited in view of the Supreme Court decision rendered in Ramesh Ahluwalia.

Facts:

(I) Saint Francis School, a Christian Minority Institution founded and run by Shamli Franciscan Education Society, a religious and charitable organization, registered under the Societies Registration Act, 1860, is affiliated to the Council for the Indian School Certificate Examinations, New Delhi.

(II) Petitioner, an assistant teacher of junior section of the school, was placed under suspension, thereafter, his services came to be terminated on 07 March 2014 with immediate effect. The writ petition was filed assailing the order of termination being arbitrary and in violation of the service conditions of the institution.

(III) A preliminary objection was raised that the writ petition is not maintainable before the High Court under Article 226 of the Constitution against private educational institution in view of the Full Bench decision rendered in M.K. Gandhi. The Full Bench, in that case, held that Delhi Public School was not the 'State' within the meaning of Article 12 of the Constitution, but the affiliating body i.e. the Central Board of Secondary Education (CBSE) is the 'State' within the meaning of the Article. The Full Bench also held that the bylaws framed by the CBSE Board for affiliation shall be deemed to have been adopted by a school in case service conditions have not been framed by the institution and the CBSE Board would be liable to take action under its bylaws to disaffiliate the school in the event of breach.

(IV) The judgment of the Full Bench of this Court was carried in appeal, the Supreme Court while disposing of the appeal vide judgment dated 14 August 2007 observed as follows:

"'That all the respondents were teachers in DPS School, Ghaziabad. Their services were terminated. Therefore, they approach the High Court of Allahabad for setting aside the termination order. The learned Single Judge referred the matter to a larger Bench on the question as to whether the writ petition is maintainable against the private school or not, as there was conflict of opinion of that High Court. Subsequently, the matter was referred to the larger Bench and the larger Bench after hearing the parties, held that no writ will lie against the private school as it is not a 'State' within the meaning of Article 12 of the Constitution of India. Having held that the writ petition is not maintainable against the private body, still, they directed the CBSE to take action, as mentioned above. With great respect to the Full Bench of the High Court, we fail to understand the direction given by the Allahabad High Court. In our opinion, the direction given by the Allahabad High Court to the CBSE to totally misconceived and uncalled for. When the Allahabad High Court has already held that the DPS School is within the meaning of Article 12 of the Constitution of India and the writ petition is not maintainable, there was no necessity for giving a direction to the CBSE which virtually amounts to granting a declaration in favour of those teachers whose services have been terminated. We fail to appreciate the view taken by the Allahabad High Court by unnecessarily complicating the issue by involving the CBSE for a private dispute between the teachers and the DPS. The Allahabad High Court should have stop short of holding that the said DPS is a private body and the writ is not maintainable. Hence, we are of the view that no writ is maintainable against a private school as it is not a 'State' within the meaning of Article 12 of the Constitution of India and no direction could have been given by the High Court to the CBSE for interfering with the functioning of the teachers. The proper remedy for the teachers was to file a civil suit for damages, if there was any. Subsequently, we allow this appeal and set aside the order passed by the Allahabad High Court to the extant of giving a direction to the Board....."

(V) The issue of maintainability of such a writ petition has also been considered in Ramesh Ahluwalia. In that case, an order removing a administrative officer of a school affiliated with CBSE was challenged before the High Court which dismissed the writ petition on the ground that it was not maintainable under Article 226 of the Constitution. The Supreme Court adverted to the earlier decision in Shri Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Sampark Trust v. V.R. Rudani5 (Anadi Mukta case), holding that the expression "any person or authority" used in Article 226 of the Constitution is not only to be confined to statutory authorities and instrumentalities of the State and would cover any other person or body performing public duty. The Supreme Court also relied upon the decisions in Unni Krishnan, J.P. and others v. State of Andhra Pradesh and others6 (Unni Krishnan case) and Zee Telefilms Ltd. and another v. Union of India and others7 (Zee Telefilms case)."

By means of para 64 and 65 of the aforesaid judgment the Full Bench of this Court has answered the question which are being reproduced herein below:

"64. Question (i): Private Institutions imparting education to students from the age of six years onwards, including higher education, perform public duty primarily a State function, therefore are amenable to judicial review of the High Court under Article 226 of the Constitution of India.

65. Question (ii): The broad principle of law which has been formulated in the judgement of the Full Bench in M.K. Gandhi and Division Bench in Anjani Kr. Srivastava is confined to the facts obtaining therein and is not an authority on the proposition of law that private educational institutions do not render public function and, therefore, are not amenable to judicial review of the High Court. The judgements do not require to be revisited."

In view of the decision of Hon'ble Full Bench dated 26.2.2019 (supra) the objection regarding maintainability of the writ petition being so raised by the learned counsel for the opposite parties is hereby turned down.

The petitioner has assailed the termination letter dated 30.5.2020 (Annexure no. 1) passed by the institution in question i.e. Dr. Virendra Swarup Public School, Sector C, Mahanagar, Lucknow (affiliated to the Council for the Indian School Certificate Examination, New Delhi). The institution in question is an intermediate college. As per the petitioner the impugned termination order dated 30.5.2020 is a stigmatic order and has been passed without conducting the departmental inquiry to this effect, therefore, in view of the settled proposition of law of the Apex Court from Parshotam Lal Dhingra vs Union Of India reported in 1958 AIR 36, 1958 SCR 828 till date if any order of termination or punishment is passed without affording an opportunity of hearing or conducting departmental inquiry to that effect would be nullity in the eyes of law. Petitioner has submitted that only on the basis of three warnings in the name of 'Blue Cards' the services of the petitioner has been terminated, however, the show cause notice was said to have been issued.

Feeling aggrieved out of order of termination dated 30.5.2020 the petitioner has preferred First Appeal before the committee of management of the institution in question. The petitioner has drawn attention of this Court towards Rule 20 of The U.P. Right of Children to Free and Compulsory Education Rules, 2011 (hereinafter referred to as Rules, 2011) which is being reproduced herein below:

"20. Grievance Redressal mechanism for teachers [Section 24(3)]:-

The first grievance redressal of teachers shall be at the School Management Committee level constituted under Section 21 and thereafter at the local authority level."

As per aforesaid rule the first grievance redressal of teacher shall be at the School Management Committee Level constituted under section 21 and thereafter at the local authority level. The Secretary of the Committee of Management has rejected the said first appeal of the petitioner vide order dated 7.7.2020 (Annexure no. 2). Feeling aggrieved out of aforesaid orders the petitioner preferred a second appeal before the D.I.O.S., Lucknow on 4.8.2020 through registered post, however, the date of appeal is indicated as 31.7.2020. As per petitioner he has preferred reminder to the D.I.O.S. for disposal of the appeal but till date the aforesaid appeal of the petitioner has not been decided by the D.I.O.S.

Be that as it may, since the petitioner has preferred an appeal before the D.I.O.S., therefore, the said appeal should have been decided by the Appellate Authority with expedition strictly in accordance with law.

Learned Standing Counsel has however, submitted that petitioner has wrongly indicated section 24(3) of Right of Children to Free and Compulsory Education Act, 2009. The Appellate Authority should have not indulged into technicalities inasmuch as if there is statutory prescription of filing appeal, mentioning of wrong section may not authorise the authority competent not to decide such appeal on account of that reason. If the authority is Appellate Authority and appeal is filed before it referring relevant facts and provisions of law, that appeal should have been decided on merits strictly in accordance with law. Besides Rule 20 of Rules, 2011 clearly refer that first grievance should be addressed by the committee of management and thereafter at the local authority level and since the institution being an Intermediate Education institution, therefore, the local authority should be the D.I.O.S. No other provision has been cited by the opposite parties to demonstrate that for the institution up to Intermediate level the local authority would be other than D.I.O.S. Therefore, I am of the considered opinion that the pending appeal of the petitioner should be decided by the Appellate Authority strictly in accordance with law and by affording an opportunity of hearing / personal hearing to the petitioner. The said Appellate Authority shall dispose of said second appeal with expedition preferably within a period of six weeks in a manner as directed above and the decision thereof shall be communicated to the petitioner forthwith.

It is made clear that by means of this petition this Court has not considered the merits of the issue inasmuch as it is up to the Appellate Authority to consider the merits of the case strictly in accordance with law and pass orders in a manner as aforesaid.

In view of the aforesaid terms the writ petition is disposed of finally.

Order Date :- 27.1.2021

Om

[Rajesh Singh Chauhan, J.]