Vinita Nair vs Union Of India
2024 Latest Caselaw 3421 MP

Madhya Pradesh High Court

Vinita Nair vs Union Of India on 6 February, 2024

Author: Vivek Rusia

Bench: Vivek Rusia

                                                   -1-



                           IN THE HIGH COURT OF MADHYA PRADESH
                                        AT I N D O R E
                                                   BEFORE
                                      HON'BLE SHRI JUSTICE VIVEK RUSIA
                                         ON THE 6th OF FEBRUARY, 2024
                                         WRIT PETITION No. 11165 of 2021

                           BETWEEN:-
                              VINITA NAIR W/O PRADEEP NAIR, AGED ABOUT 45 YEARS,
                           1. OCCUPATION: TEACHER 605, SIMRAN RESIDENCY, KANADIYA
                              ROAD, BENGALI SQUARE (MADHYA PRADESH)
                              RENU SINGH W/O M.K. SINGH, AGED ABOUT 53 YEARS,
                           2. OCCUPATION: TEACHER AI-503. KAROL BAGH, BHAWRASLA,
                              INDORE (MADHYA PRADESH)
                              MONICA KHANDELWAL W/O PRAKASH KHANDEWAL, AGED ABOUT
                           3. 49 YEARS, OCCUPATION: TEACHER 153, ALOK NAGAR. KANADIA
                              ROAD. INDORE (MADHYA PRADESH)
                              NEELU ANAND W/O ABHIJEET SINGH ANAND, AGED ABOUT 51
                           4. YEARS, OCCUPATION: TEACHER B-189 MIG DUPLEX. BEHIND CHL
                              HOSPITAL INDORE (MADHYA PRADESH)
                              RINITA JAIN W/O TAPAN JAIN, AGED ABOUT 47 YEARS,
                           5. OCCUPATION: TEACHER EH, 58, SCHEME NO. 54, VIJAYA NAGAR.
                              INDORE (MADHYA PRADESH)
                              VRUSHALI NIMGAOKAR W/O RISHIKESH NIMGAOKAR, AGED
                           6. ABOUT 43 YEARS, OCCUPATION: TEACHER 203, ELITE TOWER
                              PARK ROAD. INDORE (MADHYA PRADESH)
                              SUDHA JHA W/O RAJESH JHA, AGED ABOUT 51 YEARS,
                           7. OCCUPATION: TEACHER RH-4 CLASSIC PURNIMA ESTATE,
                              KHAJARANA RING ROAD. INDORE (MADHYA PRADESH)
                              JAISON JOYS S/O JOYS JOHN, AGED ABOUT 30 YEARS,
                           8. OCCUPATION: TEACHER 202, NAVYA AVENUE APT. 13,
                              PARICHARIKA NAGAR. INDORE (MADHYA PRADESH)
                              ASHIMA SHASTRI MODI W/O GOURAV MODI, AGED ABOUT 33
                           9. YEARS, OCCUPATION: TEACHER 188/C KALANIBAGH, DEWAS
                              (MADHYA PRADESH)
                               NAVIN LADWAL S/O ARJUN LO0DWAL, AGED ABOUT 39 YEARS,
                           10. OCCUPATION: TEACHER 19-B DR. ABEDKAR NAGAR. INDORE
                               (MADHYA PRADESH)

                           11. SONALI PANDIT W/O LATE SHRI ATUL PANDIT, AGED ABOUT 49
                               YEARS, OCCUPATION: TEACHER 251, MR-4, MAHALAKSHMI



Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 08-02-2024
15:28:36
                                                                       -2-


                                NAGAR. INDORE (MADHYA PRADESH)
                               SHASHI DADHICH W/O BIJENRDA DADHICH, AGED ABOUT 49
                           12. YEARS, OCCUPATION: TEACHER 67, VYENKATESH NAGAR. INDORE
                               (MADHYA PRADESH)
                               NISHA SHARMA W/O LATE SHRI SANJAY SHARMA, AGED ABOUT 52
                           13. YEARS, OCCUPATION: TEACHER H9 MIG COLONY. INDORE
                               (MADHYA PRADESH)
                               ARCHANA MUNDRA D/O RAMPRASADJI JOTLA, AGED ABOUT 291
                           14. YEARS, OCCUPATION: TEACHER 29/1, RACECOURSE ROAD. DR. R.S.
                               BHANDARI MARG. INDORE (MADHYA PRADESH)
                               ROHIT BIWAL S/O RAMESH BIWAL, AGED ABOUT 34 YEARS,
                           15. OCCUPATION: TEACHER 35-A/4, MAYUR NAGAR. INDORE (MADHYA
                               PRADESH)
                               RAJVEER SINGH RATHORE S/O MADAN SINGH RATHORE, AGED
                           16. ABOUT 27 YEARS, OCCUPATION: TEACHER 110A SWASTHYA NAGAR.
                               INDORE (MADHYA PRADESH)
                                                                                                        .....PETITIONERS
                           (BY SHRI RISHI SHRIVASTAVA, ADVOCATE.)

                           AND
                              UNION OF INDIA THR. SECRETARY DEPARTMENT OF SCHOOL
                           1. EDUCATION AND LITERACY, MINISTRY OF EDUCATION, 124-C,
                              SHASTRI BHAWAN (DELHI)
                                THE PRINCIPAL SECRETARY, SCHOOL EDUCATION DEPARTMENT
                           2.
                                VALLABH BHAWAN BHOPAL (M.P.) (MADHYA PRADESH)
                                COLLECTOR             /   DISTRICT           MAGISTRATE             INDORE          (MADHYA
                           3.
                                PRADESH)
                              COUNCIL FOR THE INDIAN SCHOOL CERTIFICATE EXAMINATIONS
                           4. THR. SECRETARY, PRAGATI HOUSE 3RD FLOOR 47-48, NEHRU PLACE
                              NEW DELHI (DELHI)
                              LAURELS SCHOOL INTERNATIONAL, THR. EXECUTIVE DIRECTOR
                           5. TALAVALI CHANDA MANGLIA (P.O) A.B. ROAD. INDORE (MADHYA
                              PRADESH)
                                                                                                       .....RESPONDENTS
                           (RESPONDENT NO.5 BY SHRI VIJAYESH ATRE, ADVOCATE.
                           RESPONDENT NO.1 BY MS. SURBHI BAHAL ON BEHALF OF SHRI
                           HIMANSHU JOSHI, ADVOCATE.)
                           --------------------------------------------------------------------------------------------------------
                                   This petition coming on for orders this day, the court passed the

                           following:


Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 08-02-2024
15:28:36
                                                           -3-


                                                            ORDER

The petitioners have filed the present petition seeking declaration that retrospective termination be held illegal and set aside, respondent No.5 be directed to make payment of full salary to them till date including the payment of backwages along with interest @ 12%.

02. The petitioners are permanent resident of Indore, they were appointed by respondent No.5 as Teacher. The respondent No.5 is a minority educational institution covered under Section 2(G) of National Commission for Minority Educational Institutions Act, 2004 and affiliated with respondent No.4. The respondent No.5 is not getting any grant-in-aid from State Government or Central Government.

03. According to the petitioners, the respondent No.2 issued a circular dated 24.04.2020 to all the private schools to pay salary to all the employees including Teachers. The Collector of each districts were directed to ensure the compliance of the circular. The respondent No.5 is a member of association of unaided CBSE School. The said association filed a Writ Petition No.8025 of 2020 challenging the circular dated 24.04.2020. Vide order dated 24.04.2020, this Court stayed the said circular dated 24.04.2020. Due to the interim order, the members of the association were allowed to charge the tuition fees from the students on their submission that they are required to pay the salaries to the teaching and non-teaching staff during the Covid-19 Pandemic.

04. According to the petitioners, in the month of June 2020 they were informed by respondent No.5 that they will be paid only 50% of the salary for the month of April, May & June, 2020. After payment of 50% of salary, the respondent No.5 did not stop payment of salaries. The students were directed to take the online classes during the lockdown. Some of the petitioners were deputed for invigilation duties for 2021 ISC Practical Examination. In the month of February 2021, the

petitioners were directed to register themselves on Diksha Portal and complete all 18 models of NISHTHA course.

05. The Writ Petition No.8025 of 2020 was disposed of by this Court at Principal Seat, Jabalpur with the direction to pay the salary to all teaching and non-teaching staff and no reduction more than 20% shall be allowed. The petitioner made representation for release of their salaries but the respondent No.5 has retrospectively terminated the services of petitioner Nos.1, 3 to 6 from August 2020 and petitioner Nos.8 to 14 from July 2020. No salary has been paid till the date of termination to the petitioner despite they worked as teacher. So far as the petitioner Nos.2, 7, 15 & 16 are concerned, they have neither been issued a termination letter nor arrears of salary hence, they approached this Court virtually seeking compliance of circular dated 24.04.2020 for payment of their salary.

06. The respondent No.5 filed the reply raising a preliminary objection about the maintainability of the writ petition under Article 226 of the Constitution of India. Vide order dated 28.10.2022, this Court rejected the said contention and held that the petition is maintainable and directed respondent No.5 to file a reply. The respondent No.5 filed a Writ Appeal No.1619 of 2022, challenging the aforesaid interim order. Vide order dated 09.05.2023, the writ appeal was dismissed. Thereafter, Review Petition No.602 of 2023 was filed and that too was dismissed hence, issue of maintainability of writ petition has attained finality.

07. Shri Atre, learned counsel for the respondent No.5 still made an effort by submitting that the writ petition is not maintainable in view of the judgment passed by the Apex Court in case of St. Mary's Education Society and another V/s Rajendra Prasad Bhagava and others reported in (2023) 4 Superme Court Cases 498 but applicability of this judgment has already been considered by Single Bench as well as by Division

Bench, therefore, there is no need to reconsider this issue while deciding this petition finally. As per the contents of impugned termination letters dated 12.06.2021 to all the petitioners, the respondent No.5 informed the petitioner that from 16.08.2020 onwards their services were not required and they were free to work elsewhere hence, their services are liable to be treated as terminated w.e.f. 16.08.2020. According to the respondent No.5, the petitioner worked upto August 2020 and by way of sympathetic consideration, the salary is being paid for the month of April, May and June and the gratuity shall also be paid separately.

08. Along with above termination, the petitioners were handed over the cheque of arrears @ 50% of the salary for the month of April, May, June 2020. It is correct that the School Education Department had issued a circular dated 24.04.2020 directing all the school management for regular payment of salary to all teaching and non-teaching staff. The association of this school filed a writ petition before this Court and obtained the stay of circular dated 24.04.2020 by submitting that the management of schools is required to pay full salary to the teaching and non-teaching staff, therefore, they be permitted to recover the fees excluding uncured expenses. In view of the aforesaid submission, this Court believed their statement and stayed the effect of the said circular, therefore, the members of the association including this respondent No.5 were liable to pay the salary to the teaching staff otherwise it would be contempt of this Court.

09. The aforesaid writ petition has been finally disposed of by the Division Bench that the salaries of teaching and non-teaching staff shall be regularly paid on the due date and in case if any reduced salary is paid, the reduction would not be more than 20% and the arrears towards the reduced amount shall be paid with the restoration of normalcy in six monthly equal installments. In view of the aforesaid, the petitioners

cannot be treated as terminated from service from 16.08.2020. No documentary evidence has been produced in support of the contention of the respondent No.5 that the services of the petitioners were terminated on 16.08.2020 hence, the petitioners are right in making submission that this order of termination dated 12.06.2021 is an anti-dated termination in order to avoid the payment of salaries to the petitioners till 12.06.2021. The petitioners have been terminated on false pretext that due to Covid-19 the school management is not in a position to pay the salaries.

10. In view of the above, Writ Petition is allowed. The impugned order is hereby quashed, the respondents are directed to pay the salary to the petitioner upto 12.06.2021. Those petitioners who are willing to work with the respondent No.5 they may submit their joining and the respondent No.5 shall accept their joining forthwith and if they are not interested in joining then they be paid the entire salary upto 12.06.2021 as well as the gratuity amount.

No order as to cost.

(VIVEK RUSIA) JUDGE Divyansh