Author- Shalu Goyal (ICFAI Law School, ICFAI University, Dehradun)
The Apex Court has held that a writ petition challenging the dismissal of services of a teacher is maintainable against a private unaided educational institution. This appeal was made by Marwari Balika Vidyalaya, a private school, against the judgment of Calcutta High Court. In its judgment, the High Court had directed reinstatement of a dismissed teacher namely Asha Srivastava with back wages. HC while deciding so, invoked writ jurisdiction under article 226 of Constitution of India.
The fact of the case are that respondent, namely Asha Srivastava, applied for the post of Assistant teacher in the year 1985 in appellant school i.e. Marwari Balika Vidhyalaya. After the due process, she was appointed in the appellant school on probation on 01.04 1995. The school authority referred all requisite papers to Director Inspector of School who referred those papers to Director of the School Education, West Bengal for his opinion. Director of School Education in turn requested the Director Inspector of the School to submit a declaration from Asha Srivastava stating that she would not claim arrear of salary which was unwillingly submitted by her.
Thereafter, due to delay in grant of approval, Asha Srivastava filed a writ petition No 3232/2000 seeking writ of Mandamus to accord her appointment. The High Court vide its order dated 18.12.2000 while disposing off its writ petition directed the Director of School Education to consider the matter of appointment of Asha Srivastava within a period of six weeks.
Pursuant to the communication of said order to school authority, a show cause notice was issued to Asha Srivastava by Secretary of management committee of school asking as to why she moved the said writ petition impeding Director Inspector of School as party which as alleged to have caused the breach of discipline of the School. Along with that a letter of suspension was issued suspending her for 12 days.
Asha Srivastava denied all charges in her reply. She resumed her office after the said suspension period was over. After that she was allowed to sign the register but was restrained from taking class. Thereafter she applied for leave and subsequently on assumed her office after completion of said period. she was issued a letter by the secretary of management committee asking to not attend her duty from 15.02.2001, but she continued to attend. On 19.02.2011 she was forcibly ousted from school with help of police and was asked to attend the meeting wherein she was threatened to face termination of her services. On 20.02.2001, A letter along with two cheques were served to her.
After the order of dismissal, a writ was filed in High Court which was dismissed by the single Judge bench stating that the concerned school was not recognized by the state Government, the writ petition was not maintainable. Asha Shrivastava was, however, allowed to institute a suit taking appropriate relief.
The said order of single judge bench was challenged before the Division Bench of High Court. The Division Bench in its order dated 30.01.2009 allowed the appeal and set aside the termination order. The Division Bench allowed Asha Srivastava to join school within two weeks with full entitlement of salary, allowances and service benefits as per law.
The order of Divison bench was challenged in Hon’ble Supreme Court before the bench of Justice Arun Mishra and Justice Navin Sinha.
Mr Saniv Sen, Learned senior counsel appeared on behalf of appellant argued that writ petition is not maintainable against the private unaided school and submitted the Following cases-
Committee of Management, Delhi Public School & Anr. v. Menka Gandhi & Ors (2015) 17 SCC 353
In this case SC had dismissed a case seeking reinstatement as non maintainable. SC distinguished this decision by holding that question of prior approval by government authorities for dismissing a teacher as not involved in that case.
Satimbhala Sharma &Ors. v. St. Paul’s Senior Secondary School & Ors.
This was a case demanding equal pay for private school teachers and government school teachers. In this case it was held that equality under Article cannot be raised against a private entity.
Sushmita Basu v. Ballgungu Siksha Samity
This was a case seeking equal payment of dearness allowance to private school teachers as given to government school teachers. The SC had rejected the claim stating that writ against a private body cannot be claimed if there is no public law element involved.
He also argued that no violation of natural justice was made and pointed out that prayer for wages was not made in writ petition. He also argued that High Court Bench should have considered legality of termination order.
Mr. Arun Sinha appeared on behalf of appellant and argued. He referred the following cases-
Raj Kumar v. Director of Education and others
In this case it was held that the approval of government education authorities even for a dismissal of a private school employee. The Court noted that no such approval was taken for dismissal in the instant case.
Ramesh Ahluwalia v. State of Punjab
This case held that the employee of a private school can file a writ in service disputes matters. It was observed that the school was discharging the public function and writ was maintainable against it.
The SC upheld the decision of High Court stating that “ In view of aforesaid decision we have no hesitation to hold that the Writ Application is maintainable as rightly held by the Division Bench of High Court”. It also added that the manner in which termination has been made was clearly arbitrary and the order was illegal and directed to pay back the wages was reasonable.
To Read the Order: Click Here!
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