Debipada Bhattacharjee vs The State of Assam and Others

S.N. Phukan, J.—The present petition under Article 226 of the Constitution of India is directed against the order communicated by the Secretary, Silchar Collegiate School to the writ Petitioner. From the said order it appears that the Managing Committee of the School on 4th Feb/89 reverted the writ Petitioner from his original post of Vice Principal of the College with effect from 6.2.89 and in his place one Smti. Ratna De, a senior most Asstt. Teacher was promoted as Head Mistress on temporary basis. This order is available at Annexure ''C'' to the writ petition.

It has been stated in the writ petition that from June, 1974 to March, 1976 the writ Petitioner rendered his service in honourary capacity as a teacher of the school and thereafter from 1.4.1976 the Managing Committee of the school, i.e. Respondent No. 2 appointed him as Vice Principal of the said school with effect from 1.1.1983 vide letter dtd. 28.12.82 issued be the Principal, the Respondent No. 4. The service of the writ Petitioner was also confirmed by the Principal and copies of both the letters are available at Annexure ''B'' and ''B-1'' to the writ petition. But all of a sudden, the writ Petitioner received an order from Respondent No. 2 communicated vide letter dtd. 4.2.89 i.e. the impugned order by which he was reverted from the post. Thereafter the writ Petitioner approached the Inspector of Schools Cachar vide Annexure ''D'' and thereafter the Inspector of School vide letter dtd. 17.2.89 forwarded the representation of the writ Petitioner to the Secretary of the said School asking for parawise report. The Inspector was directed not to give effect to reversion order. The copy of the letter of the Inspector dtd. 17.2.89 is available at Annexure ''E'' to the writ petition. The writ Petitioner has stated that the school was duly recognised by the Govt. and the management of the School is governed by the Assam Aided H.S. High and Middle School Management Rules, 1976, It has also been stated that the Managing Committee of the school was confirmed as per the above rules and further the said Managing Committee was reconstituted in the year 1987 by the Inspector of School and it was also recognised by the State Govt. References may be made to the order dated 30-5-87 vide Annexure-G.

In the counter filed on behalf of the school by the Secretary the main plea taken is that the school in question is a private school and no grant whatsoever was received and as such writ would not lie. It is a fact that the writ Petitioner was working as Vice Principal for long 8 years and suddenly on the ground of seniority he was demoted. It is sufficiently clear to come to the conclusion that the action of the Managing Committee was arbitrary. That apart, no show cause was given to the writ Petitioner. Therefore, the order is also violative of the principles of natural justice.

The main question is whether a writ could lie. I have heard Mr. Uzir, learned Counsel for the Petitioner and Mr. Sarma; learned Counsel for the Respondent. The attention of this Court has been drawn by the learned Counsel for the Petitioner to a decision of the Apex Court in Tikaram v. Mundikote Shikshan Prasarak Mandal and Ors. reported in AIR 1984 SC p. 1621. In para 3 of the judgment it has been laid down by the Apex Court that it is true that no teacher could enforce a right under the school Code which is non-statutory in character against the Management, but where the writ petition filed by the Head Master of a Private School was directed against an order passed in a quasi-judicial proceeding by the Director of Education on review a jurisdiction not conferred on him and no relief was claimed by the Head Master against the Management, the writ petition would be maintainable.

Learned Counsel for the Petitioner has also drawn the attention of this Court to another decision of the Apex Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. reported in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, wherein the Apex Court held that:

If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied merely on the ground that the duty to be enforced is not imposed by the statue. Mandamus is a very wide remedy which must be easily available ''to reach injustice where-ever it is found''. Technicalities should not come in the way of granting that relief under Article 226. 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 requirements of variable circumstances.

The Apex Court further held:

...any person or authority performing public duty and owing positive obligation to the affected party a writ would lie.

In the case in hand, I find that the new Managing Committee was constituted by the Inspector of Schools under Assam Aided Higher Secondary, High and Middle Schools Management Rules, 1976 and the said order dtd. 30.5.87 is available at Annexure ''G''. That apart, the school Authority submitted the resolution of the Managing Committee to the Inspector of Schools and the Inspector directed that the revision order shall not be given effect to.

Thus, it appears that apart from public duty to be performed by the Managing Committee there is interference by the Govt. agencies namely; Inspector of Schools under the relevant rules. It may be stated that the said rules is not a statutory rules but the School is accepting these rules and actions have been taken in accordance with the said rules. I am, therefore, constrained to hold that the school authority is amenable to writ jurisdiction of this Court.

It is directed that the impugned order dtd. 4.2.89 vide Annexure ''C'' to the writ petition is quashed and the school authority is also directed to allow the writ Petitioners to continue in the post of Vice Principal and shall get the salary of the said post. The Managing Committee shall regularise the period for which the writ Petitioner was not working as Vice Principal by passing appropriate orders. However, the writ Petitioner shall not be entitled to get the salary of the Vice Principal for the above period. Of course, as he is working as Asstt. Teacher during the above period he shall be paid the salary of Asstt. Teacher, if not paid.

This order shall be implemented immediately within a period of one month.

With the above direction and observation, the petition is disposed of.