Manju Nayak vs Saraswati Shiksha Parishad 1806 ...
2021 Latest Caselaw 6181 MP

   1    THE HIGH COURT OF MADHYA PRADESH
                      WP No.19337/2021
       Manju Nayak vs. Saraswati Shiksha Parishad & Anr.

Gwalior, Dated:29/09/2021

       Shri Dharmendra Dwivedi, Counsel for the petitioner.

       This petition under Article 226 of the Constitution of India has

been filed seeking following relief:

                   "i)    The    respondents    may     kindly   be

directed to decide the appeal filed by the petitioner, in accordance with law, within some prescribed time limit after hearing the petitioner.

ii) Any other suitable direction which this Hon'ble Court deems fit in the facts and circumstance of the case may kindly be passed."

It is submitted by the counsel for the petitioner that the

petitioner is a teacher and was working on the post of Acharya in the

in the school run by respondent No.1 which is registered under the

Society Registrikaran Adhiniyam. The school is being run by

Saraswati Shiksha Parishad and is managed and governed by the

society. It is submitted that since the school is imparting education to

the children which involves the element of public interest, therefore,

in the light of the judgment passed by the Supreme Court in the case

of Marwari Balika Vidyalaya vs. Asha Shrivastava reported in

(2020) 14 SCC 449 the writ petition against a private school is

maintainable. It is submitted that the petitioner was transferred from

Saraswati Shishu Mandir Nadi Gate to Saraswati Shishu Mandir, 2 THE HIGH COURT OF MADHYA PRADESH WP No.19337/2021 Manju Nayak vs. Saraswati Shiksha Parishad & Anr.

Siddheshwar Nagar, Morar. She submitted her joining at the

transferred place within the stipulated period and took over the

charge and thereafter once again she was transferred to Saraswati

Shishu Mandir, Thatipur and in compliance of the said transfer, she

took over the charge at the transferred place. Thereafter, the

petitioner was again transferred from Saraswati Shishu Mandir,

Saraswati Nagar to Saraswati Shishu Mandir, Siddheshwar Nagar,

Morar and a note was appended by the Principal on 26.6.2015 that

the new incumbent is not required and, accordingly, a letter be sent to

the concerning person. Thereafter the petitioner was again transferred

to Saraswati Shishu Mandir, Siddheshwar Nagar, Morar, however the

Principal did not supply the copy of the said order nor any

information was given. Accordingly, on 7.9.2019, a letter was issued

asking explanation. The petitioner submitted her explanation.

However without considering the explanation submitted by the

petitioner, the petitioner was saddled with a major penalty of removal

from service. Being aggrieved by the said order dated 28.9.2019, the

petitioner has preferred an appeal. However, the said appeal has not

been decided so far and it has been kept pending by respondent No.1

without any rhyme or reason.

Heard the learned counsel for the parties.

The Supreme Court in the case of Marwari Balika Vidyalaya 3 THE HIGH COURT OF MADHYA PRADESH WP No.19337/2021 Manju Nayak vs. Saraswati Shiksha Parishad & Anr.

(supra) has held as under:

16. It is apparent from the aforesaid decisions that the writ application is maintainable in such a matter even as against the private unaided educational institutions.

17. The learned Senior Counsel relied upon the decision of this Court in Delhi Public School v. M.K. Gandhi [Delhi Public School v. M.K. Gandhi, (2015) 17 SCC 353 : (2017) 5 SCC (Civ) 461 : (2015) 3 SCC (L&S) 745] wherein the question of termination of services of teachers was involved. The Committee of Management filed a civil appeal in this Court against the decision [M.K. Gandhi v. Director of Education, 2005 SCC OnLine All 728 : (2006) 62 ALR 27] of the Allahabad High Court contending that the Delhi Public School, Ghaziabad was not "State" within the meaning of Article 12 of the Constitution. The question involved was that termination of service of teachers of a private school without conducting the enquiry was contrary to bye-laws. This Court held that the writ application was not maintainable as a private school is not "State" under Article 12 of the Constitution. It is pertinent to mention here that the question of approval by Government authority was not involved in M.K. Gandhi [Delhi Public School v. M.K. Gandhi, (2015) 17 SCC 353 : (2017) 5 SCC (Civ) 461 : (2015) 3 SCC (L&S) 745] . Thus, this decision is distinguishable.

18. In Satimbla Sharma v. St. Paul's Senior Secondary School [Satimbla Sharma v. St. Paul's Senior Secondary School, (2011) 13 SCC 760 :

(2012) 2 SCC (L&S) 75] relied upon on behalf of the appellant the question involved was whether an unaided private institution is subject to public law application and to what extent. The concept of equal pay for equal work was invoked for unaided institutions on the basis of parity with respect to the teachers in the government and government-aided schools. It was observed that 4 THE HIGH COURT OF MADHYA PRADESH WP No.19337/2021 Manju Nayak vs. Saraswati Shiksha Parishad & Anr.

the right to equality enshrined in Articles 14 and 39(d) of Constitution are available against "State" only. It cannot be claimed against unaided private minority school. The teachers of the government school are paid mostly out of the government funds and teachers of private unaided schools are paid out of fees and other resources of the private school. No relief can be given in absence of statutory provisions in favour of teachers in unaided private educational institutions. The school in question was not receiving any grant in aid from the Government of Himachal Pradesh and there was a provision in favour of teachers enabling them to claim an equal salary. The decision is wholly distinguishable on facts and proposition of law laid down has different field to operate.

19. Similarly, in Sushmita Basu v. Ballygunge Siksha Samity [Sushmita Basu v. Ballygunge Siksha Samity, (2006) 7 SCC 680 : 2006 SCC (L&S) 1741] the appellant was working in a recognised private educational institution in the State of West Bengal. The schools were not receiving grants in aid from the government but were getting dearness allowance component of the approved teachers working in the school. The issue was with respect to the applicability of recommendation of the First Pay Commission and that of Second Pay Commission though there was no statutory provision or even government order directing private unaided educational institutions to implement the recommendations of the Third Pay Commission, they were implemented by the schools as part of their agreement with the teachers. Though the management also implemented the recommendations of the Third Pay Commission in the sense that the salaries of the teachers were hiked in terms of the said report, the institution refused to give retrospective effect to the enhancement. The institution refused to give effect to the recommendations of the Third Pay Commission retrospectively w.e.f. 1-1-1998. Ultimately, this Court observed in Sushmita 5 THE HIGH COURT OF MADHYA PRADESH WP No.19337/2021 Manju Nayak vs. Saraswati Shiksha Parishad & Anr.

Basu [Sushmita Basu v. Ballygunge Siksha Samity, (2006) 7 SCC 680 : 2006 SCC (L&S) 1741] that the Writ of Mandamus by the Court issued against the private institutions would be justified only if a public law element is involved.

20. The factual matrix in Sushmita Basu [Sushmita Basu v. Ballygunge Siksha Samity, (2006) 7 SCC 680 : 2006 SCC (L&S) 1741] was different. It was with respect to the parity with the government aided institution and the teachers working in unaided institutions and schools were not bound to implement recommendations of Pay Commission. No such proposition is involved in the present matter. Hence, the decision has no application to the instant case.

21. In view of the aforesaid discussion, we have no hesitation to hold that the writ application is maintainable as rightly held [Asha Srivastava v. State of W.B., 2009 SCC OnLine Cal 242] by the Division Bench of the High Court.

Thus the writ petition against a private school is maintainable.

The innocuous prayer made by the petitioner is that her appeal

is pending before respondent No.1 which has not been decided

inspite of expiry of approximately two years. Accordingly, this

petition is finally disposed of and it is directed that in case if the

appeal filed by the petitioner is still pending, then the same shall be

decided in accordance with law by passing a speaking order.

It is made clear that the direction to decide the appeal should

not be construed as a direction to allow the appeal and the respondent

No.1 shall decide the appeal without getting influenced or prejudiced

by this order.

         6    THE HIGH COURT OF MADHYA PRADESH
                           WP No.19337/2021

Manju Nayak vs. Saraswati Shiksha Parishad & Anr.

Let the entire exercise be completed within a period of three

months from the date of receipt of certified copy of this order.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.10.01 10:38:45 +05'30'