Madras High Court
K.Muniswari vs The Regional Director on 18 June, 2013
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.06.2013
CORAM:
THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN
Writ Petition No.16114 of 2013
and
M.P.Nos. 1 & 2 of 2013
K.Muniswari .. Petitioner
vs.
1. The Regional Director,
Central Board of Secondary education,
Plot No.1630 A, 'J' Block, 16th Main Road,
Anna Nagar West, Chennai 10.
2. The Dean and Director,
Padma Seshadri Bala Bhavan Sr. Secondary School,
No.29, Alagirisamy Salai, K.K.Nagar,
Chennai 78.
3. The Principal,
Padma Seshadri Bala Bhavan Sr. Secondary School,
No.29, Alagirisamy Salai, K.K.Nagar,
Chennai 78. .. Respondents
Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorarified mandamus calling for the records relating to the order of termination simplicitor issued by the Dean and Director and Principal of the Padma Seshadri Bala Bhavan Sr. Secondary School, K.K.Nagar, Chennai-78, the 2nd and 3rd respondents, dated 24.04.2013, quash the same, and consequently direct the Respondents to permit the Petitioner to continue in the said post with the continuity of service and pay all service benefits and all other concomitant and attendant benefits attached to the posts within short date that may be fixed by this Honourable Court.
For Petitioner : Ms.G.Sridevi
O R D E R
The petitioner was working as a Teacher in the 3rd respondent School, which is an unaided School. The petitioner joined as Yoga Teacher on 17.09.2001. She has been in service for more than 10 years. Now, the 3rd respondent passed the impugned order dated 24.04.2013 that there is no scope to continue the employment of the petitioner as Yoga Teacher, as the school was constrained to discontinue and abolish Yoga as a subject from the academic year 2013-2014.
2. The aforesaid order of the third respondent is challenged in this writ petition.
3. Heard learned counsel appearing for the petitioner.
4. The learned counsel for the petitioner has submitted that the writ petition is maintainable against the 3rd respondent, though the 3rd respondent is an unaided educational institution. In support of her submission, she relied on the following judgments:-
(i) 1989 (2) SCC 691 (Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani) relied on by the petitioner relates to relating to teachers employed in a private aided college. Hence, on that ground alone this judgment cannot be applied to the facts of this case. Further more, in that case, the issue was payment of terminal benefits and the writ of mandamus was sought for. In this context, the Hon'ble Apex Court has held that the Teachers therein did not seek for a direction to continue in service and therefore, the writ of mandamus for terminal benefits is maintainable. Paragraph Nos. 12, 13 and 14 of the judgment are extracted hereunder:-
"12. The essence of the attack on the maintainability of the writ petition under Article 226 may now be examined. It is argued that the management of the college being a trust registered under the Bombay Public Trust Act is not amenable to the writ jurisdiction of the High Court. The contention in other words, is that the trust is a private institution against which no writ of mandamus can be issued. In support of the contention, the counsel relied upon two decisions of this Court: (a) Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain1 and (b) Deepak Kumar Biswas v. Director of Public Instructions2. In the first of the two cases, the respondent institution was a Degree College managed by a registered cooperative society. A suit was filed against the college by the dismissed principal for reinstatement. It was contended that the Executive Committee of the college which was registered under the Cooperative Societies Act and affiliated to the Agra University (and subsequently to Meerut University) was a statutory body. The importance of this contention lies in the fact that in such a case, reinstatement could be ordered if the dismissal is in violation of statutory obligation. But this Court refused to accept the contention. It was observed that the management of the college was not a statutory body since not created by or under a statute. It was emphasised that an institution which adopts certain statutory provisions will not become a statutory body and the dismissed employee cannot enforce a contract of personal service against a non-statutory body.
13. The decision in Vaish Degree College1 was followed in Deepak Kumar Biswas case2. There again a dismissed lecturer of a private college was seeking reinstatement in service. The Court refused to grant the relief although it was found that the dismissal was wrongful. This Court instead granted substantial monetary benefits to the lecturer. This appears to be the preponderant judicial opinion because of the common law principle that a service contract cannot be specifically enforced.
14. But here the facts are quite different and, therefore, we need not go thus far. There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and arrears of salary payable to them. The question is whether the trust can be compelled to pay by a writ of mandamus?"
In the present case the prayer is to quash the termination order and for a direction to reinstate the petitioner in service. Thus, the above judgment is in fact against the petitioner.
(ii) 2002(10) SCC 487 (Ramdeo Baba Kamala Nehru Engineering College and others v. Sanjay Kumar and others) relied on by the petitioner relates to a student, who claimed refund of money paid against a payment seat for admission. In that context, the maintainability of the writ petition was decided.
Hence, I am of the view that the above judgment cannot be applied to the facts of this case.
(iii) The next case relied on by the petitioner is 2012 (12) SCC 331 (Ramesh Ahluwalia v. State of Punjab and others). In this case, a dismissed employee of the CBSE School filed appeal under Bye-law 49 of the CBSE Affiliation Bye-Laws against the dismissal order passed by the disciplinary authority before the Disciplinary Committee. Since the writ petition was filed against the order of the Disciplinary Committee constituted under the CBSE Affiliation Bye-Laws, the Apex court held that the writ petition is maintainable.
In the present case, the petitioner has not sought the remedy before the concerned authority under the CBSE Affiliation Bye-Laws. On the other hand, the petitioner has straight-away come to this court questioning the termination order under Article 226 of the Constitution, when the 3rd respondent school is an unaided school. Hence, this judgment is also of no use to the petitioner.
5. I am of the view that the writ petition under Article 226 of the Constitution cannot be entertained against the 3rd respondent unaided private school, particularly, when the writ petition is to quash the termination order passed by the school and for a direction to reinstate the terminated teacher.
6. In the result, the writ petition fails and the same is dismissed. However, the dismissal of the writ petition will not preclude the petitioner from seeking the relief under the bye-laws before the concerned authorities. No costs. Consequently, connected miscellaneous petitions are closed.
rj To
1. The Regional Director, Central Board of Secondary education, Plot No.1630 A, 'J' Block, 16th Main Road, Anna Nagar West, Chennai 10.
2. The Dean and Director, Padma Seshadri Bala Bhavan Sr. Secondary School, No.29, Alagirisamy Salai, K.K.Nagar, Chennai 78.
3. The Principal, Padma Seshadri Bala Bhavan Sr. Secondary School, No.29, Alagirisamy Salai, K.K.Nagar, Chennai 78