Jitender Singh Tyagi vs Director Of Education & Ors.
2008 Latest Caselaw 1803 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+           LPA NO. 1991/2006


                       Reserved on: September 02, 2008
Date of Decision: October 03, 2008


Jitender Singh Tyagi                            .....Petitioner
Through : Mr. Rakesh K. Khanna, Sr. Adv. with Mr. K. K. Tyagi and Faizy Ahmed
Syed, Iftikhar Ahmad, Advocates.


Versus


Director of Education and Ors.                .....Respondents


Through :    Mr. R.P. Bansal, Sr. Adv. with
Mr. Rakesh Mahajan,
Mr. Prabhat Ranjan,
Mr. Sheetesh Khanna and
Ms. Rajni Singh, Advocates
for R-2 and 3.


CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see
   the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes


                   JUDGMENT

03.10.2008 : MUKUL MUDGAL,J.

1. This Letters Patent Appeal arises out of the judgment and order dated 12th

September, 2006 passed by the learned Single Judge in W.P. (C) No. 13441/2006

whereby the writ petition was dismissed.

2. The brief facts of the present case are as follows: -

a. The appellant was appointed as Physical Education Teacher in DAV Model Sr.

Secondary School, BN-Block, Shalimar Bagh, Delhi, on 17th October, 1989.

b. However, without assigning any reason and without any approval from the Director

of Education the appellant's services were terminated on 12th May, 1990.

c. The appellant made a representation against this illegal act of termination to the

School authorities and Director of Education. The Deputy Education Officer, Zone-III

by its order dated 26th September, 1990 was pleased to hold that the prior approval of

the Director of Education is essential for termination of services and accordingly,

direction was issued to the Manager, DAV Model Senior Secondary School, Shalimar

Bagh, to take the appellant back on duty with effect from the date from which the appellant's services were terminated.

d. The respondent no.2, DAV Managing Committee through its Organizing Secretary

in compliance of the directions issued by the Deputy Education Officer was pleased to

pass an order whereby the appellant was re-appointed as P.T.I in DAV Preparatory

School, Sant Nagar, Delhi w.e.f. 01.04.1991vide letter dated 03.07.1991.

e. The respondent was pleased to make an arrangement whereby Rs.1000/- per month

was to be paid by DAV School, Sant Nagar, and balance to be paid by the DAV School,

Shalimar Bagh, where the appellant had been working earlier till he gets full salary from

DAV School, Sant Nagar.

f. The respondent no.2 partly complied with the directions of the Director of

Education because instead of reinstating the appellant from 12th May, 1990 the appellant

was reappointed with effect from 1st April, 1991.

g. The appellant was promoted to the Grade of TGT at the salary of Rs.1440/- per

month by an order dated 6th April, 1996 which was made applicable with effect from 1st

November, 1994. By an order dated 06th April, 1996 it was also decided that from April

1996 onwards the full salary would be paid by DAV School, Sant Nagar, however, the arrears of pay and allowances with effect from 1st November, 1994 was to be paid by

Darbari lal DAV Model School, Shalimar Bagh, Delhi.

h. On a query from the Secretary, DAV College Managing Committee, Secretary, the

Central Board of Secondary Education by its letter dated 5th December, 1996 was

pleased to inform them that each public school affiliated to CBSE is treated as a separate

entity. It was also informed that in respect of the service conditions each school

affiliated with the Board shall frame service rules for its employees as per the Education

Act of the State/Union Territory.

i. In the year 2000 CBSE granted affiliation to run the classes upto Xth.

j. In June 2005, the local managing committee of the school was pleased to close the

school at Sant Nagar Burari, Delhi and an intimation of the same was issued to the

parents on 29th June, 2005.

k. The DAV School, Sant Nagar being run at Dr. Mukharjee Nagar was having 19

trained teachers. The respondent nos.2 and 3 in order to defeat the provisions of the

Act/Rules, transferred 18 teachers to other schools in Delhi, however, in case of the

appellant the respondent nos.2 and 3 have acted against the mandate of the Act/Rules, and the conditions incorporated in the Essentiality Certificate dated 3rd April, 1992

issued by the respondent no.1, Director of Education and CBSE order dated 5th

December, 1996 and transferred the appellant by a letter dated 14th December, 2005

from DAV Public School, Sant Nagar, Burari, Delhi to DAV Public School, Bhai

Randhir Singh Nagar, Ludhiana, Punjab.

l. The letter dated 14th December, 2005 was neither communicated to the appellant

nor served on the appellant. However, on 14th December, 2005, the appellant was called

by the Principal, DAV Public School, Sant Nagar, Burari in her office and told that due

to some exigencies the appellant was being transferred to DAV Public School,

Ludhiana, Punjab. The appellant was informed that in the similar fashion other staff was

also being transferred to some other schools.

m. The appellant made a representation to the respondent no.1, Director of Education

on 17th December, 2005 with a copy to the Secretary. Another representation was made

on 6th March, 2006 to the Director of Education and thereafter a reminder on 8th April,

2006.

n. The respondent no.1, Director of Education by the communication dated 22nd June, 2006 passed an order directing the respondent no.2 to withdraw the transfer order of the

appellant and to send a compliance report.

o. During this period the appellant was not medically fit to join duties and intimation

of the same was being timely made to the respondent no.3. On becoming medically fit,

the appellant immediately requested the School authorities to allow him to join duties on

18th July, 2006 and a similar request was also made on 1st August, 2006.

p. Inspite of the specific order of the respondent no.1, the Director of Education to

withdraw the transfer order the respondents, school authorities still insisted on their

transfer order dated 14th December, 2005.

3. The appellant thereafter filed a Writ Petition (Civil) No. 13441 of 2006 seeking a

writ or order in the nature of mandamus directing the respondent No. 2 and 3 to comply

with the order dated 22nd June, 2006 passed by respondent no.1, the Director of

Education, whereby a direction was issued under Section 24(3) of DSEA-1973 to the

respondent no.2 to withdraw the transfer order dated 14th December, 2005 of the

appellant from DAV School, Sant Nagar, Burari, Delhi to DAV School, Ludhiana,

Punjab.

4. The main question involved in the present appeal is contained in para 2 of the

impugned judgment which reads as follows:

"Accordingly, what the writ petitioner is demanding a writ of mandamus directing the respondents to comply with the order that has already been passed by the respondent no.1. The impugned order of respondent no.1 has been passed directing the respondent no.2 to withdraw the transfer order against the petitioner on 14.12.2005. The petitioner himself has no grievance left in respect of the transfer order since that has been set aside. The order of 22.06.2006 is in favour of the petitioner. The petitioner wants this Court to further pass an order directing compliance of the order dated 22.06.2006. In effect the petitioner is asking this Court to implement the order dated 22.06.2006. The petitioner, despite opportunities given, could not explain how such a writ petition is maintainable."

5. In our view, the order of the learned Single Judge is wholly untenable in law. It is

not in dispute that the respondent no.1 Director of Education has jurisdiction to issue

directions to the respondent nos.2 and 3. It is also not in dispute that an order dated 22nd

June 2006 has been passed directing the respondent no.2 to withdraw the transfer order

of the appellant and to send a compliance report. The respondent no.1 functions under

the 1973 Act and the Rules framed thereunder. The respondent nos.2 and 3 are

amenable to the jurisdiction of the Director of Education, i.e., the respondent no.1. The very scope of the writ of mandamus demands that a citizen of this country seeking a writ

of mandamus may get enforced the public duty owed by the authority amenable to a

statute and the statutory obligations flowing from such a statute. It was categorically

informed by Respondent No.1 to Respondent No.2 and 3 the service conditions of each

school affiliated with the CBSE Board should be in accordance with the Education Act

of the particular State/Union Territory. In our view, the learned Single Judge failed to

appreciate the scope of writ of mandamus.

6. H.W.R. Wade & F. Forsyth in their book Administrative Law on the question of

mandamus defined the nature of this remedy as follows:-

"The prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities of all kinds. Like the other prerogative remedies, it is normally granted on the application of a private litigant, though it may equally well be used by one public authority against another. The commonest employment of mandamus is as a weapon in the hands of the ordinary citizen, when a public authority fails to do its duty by him. Certiorari and prohibition deal with wrongful action, mandamus deals with wrongful inaction. The prerogative remedies thus together cover the field of government powers and duties.....

.....Modern government is based almost exclusively on statutory powers and duties vested in public bodies, and mandamus is the regular method of enforcing the duties....

.....Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable, as per Darling J in the case of R. v. Hanley Revising Barrister [1912] 3 KB

518."

7. In order to obtain a writ or order in the nature of mandamus, the applicant must

satisfy the following conditions:

(i) The applicant must show that he has a legal right to the performance of a legal duty (as distinguished from discretion) by the party against whom the mandamus is sought, and such right must be subsisting on the date of the petition.

(ii) The duty that may be enjoined by mandamus may be one imposed by the Constitution; a statute;

common law or by rules or orders having the force of law.

8. The Hon'ble Supreme Court in the case of Saraswati Industrial Syndicate Ltd.

vs. Union of India (1974) 2 SCC 630 defined the extent of the High Court's power

under Article 226 of the Constitution to issue the writ of mandamus and held as under:

"The powers of the High Court under Art.226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well recognized rule that no writ or order in the nature of a mandamus would be issued when there is no failure to perform a mandatory duty applies in this country as well.

As a general rule the order will not be granted unless the party complained of has known what it was that he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal."

9. The general principle so far observed in regard to the issuance of writ of

mandamus has been to secure the performance of a public duty when there has been a

statutory duty to do something, and in the performance of which the applicant has a

sufficient legal interest, , i.e., locus standi. It is also observed that it is the duty of the

Court to the vigilant to apply the principal in every case to which, by any reasonable

construction, it can be made applicable.

10. On the question of issuing mandamus to private bodies an authoritative

pronouncement was made by the Supreme Court in the case of Praga Tools Corpn. v.

CA Imanual , (1969) 1 SCC 585. The court held that though ordinarily mandamus is

issued only to a public body or authority to compel it to perform some public duty cast

upon it by some statute or statutory rules, in exceptional cases it may be issued even to a private body if a public duty is cast upon it by a statute or statutory rule, to compel it to

perform solely its public duty.

11. Whether a writ can be issued when the managing committee of an affiliated

college dismisses the services of a teacher? In Vaish College Society v. Lakshmi

Narain, AIR1974 All 1, the managing committee of a college affiliated to the Meerut

University dismissed the services of the Principal of the college. The Principal

challenged the dismissal. The question which received the attention of the Court was

whether mandamus could be issued to the managing committee which was a purely

private body but was affiliated to a statutory body. The Allahbad High Court followed

the formulation of the Supreme Court stipulated in Vidya Ram Misra v. Managing

Committee, Sri Jai Narain College, (1972) 1 SCC 623. That is, mandamus cannot be

issued to enforce a contract pure and simple. But, if certain legal norms are applicable

to the terms and conditions of service by their own force, proprio vigore without being

incorporated in a written contract, the mandamus can be issued to enforce a breach of

law and not a breach of contract. In the instant case, i.e., Vaish's case, it was formulated

that if an Act, Statute or Ordinance relating to the terms and conditions of affiliation of

colleges to a University are enforceable on their own force, i.e., proprio vigore, no matter that a teacher is required to be appointed under a written contract, he will have an

enforceable right entitling him to a declaration of statutory invalidity of any action taken

against him in violation of such provisions affecting his employment.

12. On the other question that, could mandamus be issued to a non-statutory body?

The Allahabad High Court dealt with plea that since the duty to appoint a teacher was

cast upon the management as defined under the Meerut University Act, the management

acted as a statutory functionary while appointing a teacher. Thus, the management, a

purely private and non-statutory body, would be amenable to judicial review through

mandamus when it performed a statutory function, i.e., under the provisions of Meerut

University Act.

13. In the words of Asthana, J. "The case exemplifies the most satisfactory

formulation of judicial thinking in regard to the issuance of mandamus. The

advancement of judicial argument in this case is in line with the trend of modern judicial

thinking which has been explicitly prefaced by L.C. Green:

".....some of the sociological problems that arise when the law is confronted with problems of modern life."

14. The stand of the respondent no.1, the Director of Education is very categorical

that the duties of an employee of a school are governed by the Act and the rules framed

thereunder and that the respondent no.3 refused to restore the duties of the appellant in

spite of his repeated requests and the directions of the Director of Education the

respondent no.1 who is the statutory authority. Even the respondent no.1, the Director

of Education, has submitted that a writ of mandamus should be issued to the school

which performs functions under the Act. Even otherwise the impugned order in the

present case causes a grave miscarriage of justice as the respondents 2 and 3 are

wantonly disobeying and defying an order under the Delhi School Education Act, 1973

by which they are bound. In fact, we fail to see whether any better case than the present

could be found for exercise of a writ of mandamus.

15. Accordingly, the judgment of the learned Single Judge cannot be sustained and

the same is set aside. A writ of mandamus is issued directing the respondents 2 and 3 to

implement the order dated 22nd June 2006 passed by the respondent no.1 the Director of

Education under Section 24 (3), not later than 31st October, 2008 and also pay all arrears

and/or payment due to him pursuant to the said order dated 22nd June 2006. The appeal is thus allowed with costs quantified at Rs.20,000/- payable to the appellant not later

than 31st October, 2008.

MUKUL MUDGAL, J.

MANMOHAN, J.

October 03, 2008 sk/dr