Jammu & Kashmir High Court - Srinagar Bench
The Staff Members Association Of ... vs Ut Of J&K And Ors on 7 October, 2023
S. No. 9
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No. 399/2022
The Staff Members Association of Iqbal ...Appellant/Petitioner(s)
Islamia Mission High School, Brain Nishat
Through: Mr. Bilal Ahmad Khan, Advocate
Vs.
UT of J&K and Ors. ...Respondent(s)
Through: Mr. Syed Musaib, Dy. AG
Mr. M. Sultan, Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
ORDER
07.10.2023
1. Impugned in this petition are Order No.F(11MHS-Mgt) 308-326 dated
04.02.2022, issued by the Chairman, Iqbal Islamia Mission High
School, Kral-Sagri Brein Srinagar, and notice No.
IIMHS/Brn/1070/22 dated 08.02.2022, issued by Principal, Iqbal
Islamia Mission High School, Kral-Sagri Brein Srinagar, whereby
amendment has been made to the Constitution of the school, which
has been approved by the General Body and school management has
invited applications for engagement of teachers in Urdu, English,
Kashmiri and Computer respectively.
2. The petitioners also seek a direction upon respondents to pay them all
consequential service benefits from the date due to them arising out of
their post which they held and also to fix their seniority in view of
length of their service. The impugned order and notice are said to
have been issued by the private respondents 7 to 9.
WP(C) No. 399/2022
3. The private respondents 7 to 9 have filed their reply, wherein it is
stated that this petition is not maintainable on the ground that this
petition has been filed against the school and its management, and the
school is not funded by the Government. It is also stated that
petitioners 1 and 2 have already attained the age of superannuation as
per the rules of constitution. It is also stated in the reply that as per the
date of birth certificate issued by the Board of School Education,
Kashmir, the date of birth of petitioner no.1 is shown as 01.04.1962
and date of birth of petitioner no.2 is shown as 11.06.1963. As per the
Rule position Statute 7.6.1, the retirement age is 58 years, therefore,
the petitioners have attained the age of superannuation. The relief
sought by the petitioners in this petition could not have been granted
because they have already attained the age of superannuation.
4. Heard learned counsel for the parties and perused the material on
record.
5. The impugned order and notice have been issued by the Management
of Iqbal Islamia Mission High School, Kral-Sangri, Brein, Srinagar,
therefore, respondents 1 to 6 have nothing to do with the amendment
of Constitution or issuance of impugned notice. Thus, they are
unnecessarily impleaded as party respondents in this petition.
6. Learned counsel for the petitioners in support of his contention has
placed reliance on T. T. Chakravarthy Yuvraj v. Principal, Dr. B. R.
Ambedkar, reported in AIR 1997 Karnatka 261 and judgment dated
04.08.2020 passed by this Court in writ petition bearing WP(C) No.
971/2020 titled Satvinder Singh v. Presentation Convent Senior
Secondary School through its Principal Gandhi Nagar, Jammu and
Another. While going through both the judgements, it would be clear
WP(C) No. 399/2022
that they are not applicable in this petition as there in no public
element involved in this petition. Learned counsel for the petitioners
has invited attention of this Court to para 5 of the judgement dated
04.08.2020, passed by a Bench of this Court in WP(C) No. 971/2020 ,
but having regard to the facts of this case, the said para does not lend
any support to the petitioners and, therefore, submission is without
any legal sanctity. The issue raised in this petition is the power of
Management to amend the Constitution and to issue impugned order
and notice.
7. The petitioners have also sought fixation of their seniority and benefit
which they may accrued on account of length of service rendered by
them to the said school.
8. Now question arises as to whether the petitioners are continuing to
work after attaining the age of 58 years. The material placed on record
by the private respondents makes it clear that before filing of this writ
petition, the petitioners had already attained the age of superannuation
as per the Rule position statute 7.6.1.
9. Learned counsel for the private respondents in support of his
contention has placed reliance on judgement dated 24.08.2022 passed
by the Supreme Court in case titled as St. Marys Education Society
and Anr. v. Rajendra Prasad Bhargava and Ors. While dealing with
the matter of a private unaided Minority Educational Institution in
para 3 and 34, it has been observed as under:-
"3. In the present appeal, two pivotal issues fall for consideration of
this Court:
(a) Whether a writ petition under Article 226 of the Constitution
of India is maintainable against a private unaided minority
institution?
WP(C) No. 399/2022
(b) Whether a service dispute in the private realm involving a
private educational institution and its employee can be
adjudicated in a writ petition filed under Article 226 of the
Constitution?
In other words, even if a body performing public duty is
amenable to writ jurisdiction, are all its decisions subject to
judicial review or only those decisions which have public
element therein can be judicially reviewed under the writ
jurisdiction?
"34. It needs no elaboration to state that a school affiliated to the CBSE
which is unaided is not a State within Article 12 of the Constitution of
India [See : Satimbla Sharma v. St. Pauls Senior Secondary
School [(2011) 13 SCC 760]. Nevertheless the school discharges a public
duty of imparting education which is a fundamental right of the citizen
[See : K. Krishnamacharyulu v. Sri Venkateshwara Hindu College of
Engineering, (1997) 3 SCC 571]. The school affiliated to the CBSE is
therefore an "authority" amenable to the jurisdiction under Article 226 of
the Constitution of India [See : Binny Ltd. and another v. V. Sadasivan
and others, (2005) 6 SCC 657].
However, a judicial review of the action challenged by a party can be had
by resort to the writ jurisdiction only if there is a public law element and
not to enforce a contract of personal service. A contract of personal
service includes all matters relating to the service of the employee -
confirmation, suspension, transfer, termination, etc. [See : Apollo
Tyres Ltd. v. C.P. Sebastian, (2009) 14 SCC 360]."
10. From the above, it is clear that a school affiliated with Government,
which is unaided, is not a State within the Article 12 of the
Constitution, qua contract of personal service, inasmuch as a contract
of personal service includes all matters concerning service of
employee.
11. For the foregoing reasons, this writ petition is not maintainable and
the same is, accordingly, dismissed. However, petitioners are at
liberty to avail such remedy as may be available to them under law.
(VINOD CHATTERJI KOUL)
JUDGE
SRINAGAR
07.10.2023
Manzoor
