MISHRA AND NAVIN SINHA, JJ.]versusASHA SRIVASTAVA & ORS.

722                SUPREME [2019]
                           COURT2 REPORTS
                                  S.C.R. 722                [2019] 2 S.C.R.


A                    MARWARI BALIKA VIDYALAYA
                                     v.
                       ASHA SRIVASTAVA & ORS.
                      (Civil Appeal No. 9166 of 2013)
                          FEBRUARY 14, 2019
B
                 [ARUN MISHRA AND NAVIN SINHA, JJ.]
             Constitution of India: Art. 226 – Writ petition – Maintainability
      of – Termination of school teacher – Challenge to – Writ application
      filed by the school teacher against private school – Dismissed by
      the Single Judge of the High Court on the ground that the school
C
      was not a recognised primary school by State Government but a
      privately managed primary school, thus, the writ application was
      not maintainable – Division Bench held that the writ application
      was maintainable – Termination order was set aside and the school
      teacher was allowed to join appellant school with the full entitlement
D     of salary, allowances and service benefits – On appeal, held: Writ
      Application is maintainable even as against the private unaided
      educational institutions since providing education to children is a
      public function – Appointment was, at first instance, on probation
      for two years – Approval of the appointment from the District
      Inspector of Schools had been made with retrospective effect and
E
      no approval was obtained for the purpose of removal – Government
      also pleaded in its reply that approval of appointment was made
      necessary considering the arbitrariness in the appointments which
      was prevailing, and once approval for appointment was necessary
      there is no doubt that approval for removal was also necessary –
F     Order of dismissal was passed in the most arbitrary manner without
      holding a departmental enquiry – Thus, the order of the Division
      Bench upheld – Issuance of direction to grant back wages to the
      school teacher – Service law.
             Committee of Management, Delhi Public School & Anr.
             v. M.K. Gandhi & Ors. (2015) 17 SCC 353; Sushmita
G
             Basu & Ors. v. Ballygunge Shiksha Samity & Ors.
             (2006) 7 SCC 680 : [2006] 6 Suppl. SCR 506;
             Satimbla Sharma & Ors. v. St. Paul’s Senior Secondary
             School & Ors. (2011) 13 SCC 760 : [ 2011] 10
              SCR 203 - distinguished.
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                                        722
   MARWARI BALIKA VIDYALAYA v. ASHA SRIVASTAVA                               723


      Ramesh Ahluwalia v. State of Punjab & Ors. (2012) 12                   A
      SCC 331 : [2012] 12 SCR 315 ; Raj Kumar v. Director
      of Education & Ors. (2016) 6 SCC 541 : [2016] 1
       SCR 697 ; Anoop Jaiswal v. Government of India &
      Anr. (1984) 2 SCC 369 : [ 1984] 2 SCR 453 –
      referred to.
                                                                             B
                     Case Law Reference
[2012] 12 SCR 315                 referred to              Para 11
[2016] 1 SCR 697                  referred to              Para 11
(2015) 17 SCC 353                 distinguished            Para 11
                                                                             C
[2011] 10 SCR 203                 distinguished            Para 17
[2006] 6 Suppl. SCR 506           distinguished            Para 18
[1984] 2 SCR 453                  referred to              Para 22
       CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9166                  D
of 2013.
       From the Judgment and Order dated 30.01.2009 of the High
Court at Calcutta in A.P.O.T. No. 709 of 2001 in Writ Petition No. 889
of 2001.
       Sanjiv Sen, Sr. Adv., Shabyashachi Patra, Sayan Ray, Soumo Palit,     E
M/S. Khaitan & Co., Advs. for the Appellant.
       Arun K. Sinha, Swastik Verma, Sinha Shrey Nikhilesh, Suhaan
Mukerji, Ms. Astha Sharma, Amit Verma, Dimple Nagpal, M/S. PLR
Chambers And Co., Advs. for the Respondents.
       The following Order of the Court was passed
                                                                             F
                               ORDER
       1. The main question for consideration in the appeal is as to
maintainability of writ petition as against private school receiving grant
in aid to the extent of dearness allowance. The appeal has been filed
against the judgment and order dated 30.1.2009 passed by the Division
                                                                             G
Bench of the High Court of Calcutta whereby the appeal filed by
respondent No.1 was allowed directing his reinstatement along with back
wages.


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724                 SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A            2. The facts of the case are that respondent No.1 herein applied
      for the post of Assistant Teacher in the year 1985 and after the interview
      she was appointed as Assistant Teacher in the appellant-school on
      probation w.e.f. 01.04.1995. The school authority referred all requisite
      papers to the District Inspector of Schools concerned seeking approval
      on 31st March 1995. On 2nd January 1997 concerned District Inspector
B
      of Schools (Primary Education), Calcutta referred those papers to the
      Director of School Education, West Bengal for his opinion who in turn
      requested the District Inspector of Schools concerned to submit a
      declaration from respondent No.1 herein that she would not claim any
      arrear of salary. Respondent No.1 unwillingly agreed to such an
C     undertaking.
             3. Thereafter, there was a delay in granting approval and
      respondent No.1 on 27.11.2000 filed a Writ Application No.3232 of 2000
      before the High Court seeking Writ of Mandamus commanding the
      Director of School Education, West Bengal and concerned District
D     Inspector of Schools to accord approval of the appointment. The High
      Court vide order dated 18.12.2000 in W.P. No.3232/2000 disposed of
      the Writ Petition with direction to Director of School Education to consider
      the matter with regard to approval of the appointment of respondent
      No.1 as Assistant Teacher in appellant school within a period of six
      weeks.
E            4. The order passed in the Writ Petition was communicated to the
      appellant-school which resulted in a show cause notice being issued by
      the Secretary of the Managing Committee to respondent No.1 herein
      asking as to why she moved the said Writ Application impleading the
      District Inspector of Schools (Primary Education) Calcutta as a party in
F     the proceeding, which as per their understanding caused breach of
      discipline of the school. Along with this letter order of suspension was
      issued and she was suspended for a period of 12 days w.e.f. 21.12.2000
      to 01.01.2001.
             5. In her reply to the letters of the appellant school, respondent
      No.1 denied the charges against her. After the period of suspension was
G
      over, respondent No.1 reported to her duties. She was allowed to sign
      the attendance register but was restrained from taking classes.
      Respondent No.1 applied for leave and on 14.2.2001 she resumed her
      duties but she was not allowed to perform the duty. A letter was issued
      to her by the Secretary of the Managing Committee asking her not to
H     attend duty from 15.02.2001. But she continued to attend school and
    MARWARI BALIKA VIDYALAYA v. ASHA SRIVASTAVA                                725


took the classes. On 19.02.2001 she was forcibly ousted from the school        A
with the help of police and was asked to attend a meeting wherein she
was threatened to face termination of service. On 20.2.2001 she was
served with a letter of termination annexing two cheques.
       6. Assailing the order of termination, respondent No.1 filed a Writ
Application before the High Court. Learned Single Judge of the High            B
Court vide order dated 20.8.2001 dismissed the W.P. No.889/2001 on
the ground that as the concerned school was not a recognised primary
school by State Government but a privately managed primary school,
writ application was not maintainable. However, it allowed respondent
No.1 to institute an appropriate suit for seeking relief claimed in the writ
petition.                                                                      C
       7. Challenging the dismissal of WP No.889/2001, respondent No.1
appealed before the Division Bench of the High Court. The Division
Bench vide order dated 30.1.2009 in APOT No.709/2001 in W.P. No.889/
2001 allowed the appeal preferred by respondent No.1 and set aside the
termination order and allowed respondent No.1 to join appellant school         D
within two weeks with the full entitlement of salary, allowances and
service benefits as per law. This order of the Division Bench has been
challenged before this Court.
       8. It was urged by Mr. Sanjiv Sen, learned Senior Counsel
appearing for the appellant that the Writ Application as against private       E
unaided school was not maintainable in view of the decisions of this
Court in Committee of Management, Delhi Public School & Anr. v.
M.K. Gandhi & Ors. (2015) 17 SCC 353, Sushmita Basu & Ors. v.
Ballygunge Shiksha Samity & Ors. (2006) 7 SCC 680 and Satimbla
Sharma & Ors. v. St. Paul’s Senior Secondary School & Ors. (2011)
13 SCC 760.                                                                    F
       9. It was also submitted on behalf of appellant that the Single
Judge or the Division Bench should have gone into the legality of the
termination order and on the grounds on which the termination order had
been passed. The respondent employee was guilty of insubordination
and using foul language as mentioned in the order of termination. Learned      G
counsel also pointed out that the explanation was asked from the
respondent-employee but she could not submit a satisfactory explanation
and consequently her services were terminated. He submitted that she
was heard and there was no violation of principles of natural justice.

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726                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A            10. He also urged that no prayer was made in the writ application
      for grant of back wages and the Division Bench has not assigned any
      reason for granting relief of reinstatement in the instant case. Learned
      counsel prayed that back wages should not be granted in case
      reinstatement part is upheld.
B            11. Mr. Arun K. Sinha learned counsel on behalf of the respondent-
      employee has relied upon the decision of this Court in Ramesh Ahluwalia
      v. State of Punjab & Ors. (2012) 12 SCC 331. He has also pressed
      into service the decision in Raj Kumar v. Director of Education &
      Ors. (2016) 6 SCC 541 to submit that approval of concerned Government
      authority was necessary for appointment, it was necessary for termination
C     also as found by the High Court, the termination was illegal and void.
      Back wages and reinstatement have been rightly ordered as no
      departmental enquiry was conducted before passing the order of
      termination.
             12. Firstly, we examine the question with respect to the
D     maintainability of the Writ Application. It has been clearly averred in the
      Writ Application that the appointment was, at first instance, on probation
      for two years. It is not in dispute that in the instant case that approval of
      the appointment had been made with retrospective effect 1st January
      2001 and no approval admittedly has been obtained for the purpose of
      removal passed on 20.2.2001. There is a clear pleading in the Writ
E     Application that the approval was necessary, its denial in reply is evasive.
      No such approval had been obtained in the instant case. It is apparent
      that the Government has also pleaded in its reply that approval of
      appointment was made necessary considering the arbitrariness in the
      appointments which was prevailing, and once approval for appointment
F     was necessary there is no doubt that approval for removal was also
      necessary, which was not obtained in the instant case.
             13. In Raj Kumar v. Director of Education & Ors.(supra) this
      Court held that Section 8(2) of the Delhi School Education Act, 1973 is
      a procedural safeguard in favour of employee to ensure that order of
      termination or dismissal is not passed without prior approval of Director
G
      of Education to avoid arbitrary or unreasonable termination/dismissal of
      employee of even recognised private school. Moreover, this Court also
      considered the Objects and Reasons of the Delhi School Education Act,
      1973 and came to the conclusion that the termination of service of the
      driver of a private school without obtaining prior approval of Director of
H     Education was bad in law. This Court observed:
    MARWARI BALIKA VIDYALAYA v. ASHA SRIVASTAVA                               727


       “45. We are unable to agree with the contention advanced by the        A
       learned counsel appearing on behalf of the respondent School.
       Section 8(2) of the DSE Act is a procedural safeguard in favour
       of an employee to ensure that order of termination or dismissal is
       not passed without the prior approval of the Director of Education.
       This is to avoid arbitrary or unreasonable termination or dismissal
                                                                              B
       of an employee of a recognised private school.”
       14. This Court has laid down in Raj Kumar v. Director of
Education & Ors. (supra) that the intent of the legislature while enacting
the Delhi School Education Act, 1973 (in short, ‘the DSE’) was to provide
security of tenure to the employees of the school and to regulate the
terms and conditions of their employment. While the functioning of both       C
aided and unaided educational institutions must be free from unnecessary
Governmental interference, the same needs to the reconciled with the
conditions of employment of the employees of these institutions and
provision of adequate precautions to safeguard their interests. Section
8(2) of the DSE Act is one such precautionary safeguard which needs           D
to be followed to ensure that employees of educational institutions do
not suffer unfair treatment at the hands of the management.
       15. Writ application was clearly maintainable in view of aforesaid
discussion and more so in view of the decision of this Court in Ramesh
Ahluwalia v. State of Punjab & Ors. (supra) in which this court has
considered the issue at length and has thus observed:                         E
         “13. in the aforesaid case, this Court was also considering a
       situation where the services of a Lecturer had been terminated
       who was working in the college run by the Andi Mukti Sadguru
       Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak
       Trust. In those circumstances, this Court has clearly observed as      F
       under:(V.R. Rudani case, SCC PP.700-701, paras 20 & 22)
         “20. The term ‘authority’ used in Article 226, in the context,
         must receive a liberal meaning unlike the term in Article 12.
         Article 12 is relevant only for the purpose of enforcement of
         fundamental rights under Article 32. Article 226 confers power       G
         on the High Courts to issue writs for enforcement of the
         fundamental rights as well as non-fundamental rights. The words
         ‘any person or authority’ used in Article 226 are, therefore, not
         to be confined only to statutory authorities and instrumentalities
         of the State. They may cover any other person or body
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728                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A              performing public duty. The form of the body concerned is not
               very much relevant. What is relevant is the nature of the duty
               imposed on the body. The duty must be judged in the light of
               positive obligation owed by the person or authority to the affected
               party. No matter by what means the duty is imposed, if a positive
               obligation exists mandamus cannot be denied.
B
               22. Here again, we may point out that mandamus cannot be
               denied on the ground that the duty to be enforced is not imposed
               by the Statute. Commenting on the development of this law,
               Professor de Smith states:’To be enforceable by mandamus a
               public duty does not necessarily have to be one imposed by
C              statute. It may be sufficient for the duty to have been imposed
               by charter, common law, custom or even contract. We share
               this view. The judicial control over the fast expanding maze of
               bodies affecting the rights of the people should not be put into
               watertight compartment. It should remain flexible to meet the
D              requirements of variable circumstances. Mandamus is a very
               wide remedy which must be easily available ‘to reach injustice
               wherever it is found’. Technicalities should not come in the
               way of granting that relief under Article 226. We, therefore,
               reject the contention urged for the appellant on the maintainability
               of the writ petition.
E           The aforesaid observations have been repeated and reiterated in
            numerous judgments of this Court including the judgments in Unni
            Krishnan and Zee Telefilms Ltd. brought to our notice by the
            learned counsel for the appellant Mr. Parikh.
            14. In view of the law laid down in the aforementioned judgment
F           of this Court, the judgment of the learned Single Judge as also the
            Division Bench of the High Court cannot be sustained on the
            proposition that the writ petition would not maintainable merely
            because the respondent institution is a purely unaided private
            educational institution. The appellant had specifically taken the
            plea that the respondents perform public functions i.e. providing
G
            education to children in their institutions throughout India.”
                                                           (emphasis supplied)
            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.
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    MARWARI BALIKA VIDYALAYA v. ASHA SRIVASTAVA                               729


       16. Learned Senior Counsel relied upon the decision of this Court      A
in Committee of Management, Delhi Public School & Anr. v. M.K.
Gandhi & Ors. (supra) 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 of Allahabad High Court
contending that the Delhi Public School, Ghaziabad was not a ‘State’
                                                                              B
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            C
was not involved in M.K. Gandhi (Supra). Thus, this decision is
distinguishable.
       17. In Satimbla Sharma & Ors. v. St. Paul’s Senior Secondary
School & Ors. (supra) relied upon on behalf of the appellant the question
involved was whether an unaided private institution is subject to public      D
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 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          E
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       F
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.
       18. Similarly, in Sushmita Basu & Ors. v. Ballygunge Shiksha
Samity & Ors. (supra) the appellant was working in a recognised private       G
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             H
730                 SUPREME COURT REPORTS                        [2019] 2 S.C.R.


A     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
B
      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 Basu (supra) that
      the Writ of Mandamus by the Court issued against the private institutions
C     would be justified only if a public law element is involved.
             19. The factual matrix in Sushmita Basu (supra) 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
D     is involved in the present matter. Hence, the decision has no application
      to the instant case.
             20. In view of the aforesaid discussion, we have no hesitation to
      hold that the Writ Application is maintainable as rightly held by the Division
      Bench of the High Court.
E            21. Coming to the question of relief of reinstatement and back
      wages, in view of the factual matrix of the instant case, we have taken
      note of the fact that the approval of the concerned authorities was not
      obtained and stigmatic order of dismissal was passed in the most arbitrary
      manner. It is not in dispute that no departmental enquiry was held.
             22. In the case of Anoop Jaiswal v. Government of India &
F     Anr. (1984) 2 SCC 369, the appellant was undergoing training as a
      probationer. On a particular day, all the trainees arrived late at the place
      wherein P.T./unarmed combat practice was to be conducted. An enquiry
      was initiated and the impugned order of discharge under Rule 12(b) of
      the IPS (Probation) Rules, 1954 on the ground of his unsuitability for
G     being a member of the IPS. It was held that the order was punitive in
      nature which in absence of any proper enquiry. It was held as under:
             “13......Even though the order of discharge may be non-committal,
             it cannot stand alone. Though the noting in the file of the
             Government may be irrelevant, the cause for the order cannot be
             ignored. The recommendation of the Director which is the basis
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    MARWARI BALIKA VIDYALAYA v. ASHA SRIVASTAVA                               731


      of foundation for the order should be read along with the order for     A
      the purpose of determining its true character. If on reading the
      two together the Court reaches the conclusion that the alleged
      act of misconduct was the cause of the order and that but for that
      incident it would not have been passed it is inevitable that the
      order of discharge should fall to the ground as the appellant has
                                                                              B
      not been afforded a reasonable opportunity to defend himself as
      provided in Article 311(2) of the Constitution.”
      23. In the present case, the employee has served for five years
before dismissal from the service by a stigmatic order, passed without
holding an enquiry, we cannot entertain the submission raised by learned
Senior counsel for the Appellant-School that back wages should be denied.     C
The manner in which termination had been made was clearly arbitrary
and the order was illegal and void and thus back wages should follow.
      24. Resultantly, the Civil Appeal is dismissed.
      No costs.
                                                                              D
Nidhi Jain                                                Appeal dismissed.




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