The Managing Committee, Silchar Collegiate School vs Debipada Bhattacharjee, The State of Assam, The Inspector of Schools and The Principal, Silchar Collegiate School

Manisana, J.—This appeal arises from a Judgment of a Single Judge made on 5.11.92 in civil Rule No. 476 of 1989. The facts leading to the writ petition are in brief as follows. The Silchar Collegiate School is a recognised institution run by a private body. The Petitioner was initially appointed as temporary teacher in school with effect from 1.4.76; later as the Vice-Principal temporarily with effect from 1.1.83. The Petitioner was confirmed has Assistant Teacher with effect from 1.4.88. Thereafter, by a resolution dated 4.2.89 of the Managing Committee of the School, the Petitioner was reverted from the post of the Vice-Principal to his substantive post of the Assistant Teacher with effect from 6.2.89, and Smti Ratna De was promoted as the Assistant Headmistress purely on temporary basis. Thereafter notice dated 4.2.89 was issued by the management reverting the Petitioner to the post of Assistant Teacher and appointing Rama De as the Assistant Head-mistress. Against the reversion from the post of Vice-Principal, the Petitioner submitted a representation to the Inspector of Schools, Cachar. The Inspector of Schools vide letter dated 17.2.39, forwarded tire representation to the Secretary of the Managing Committee for point-wise comment on the representation, and directed the Secretary not to give effect to she notice dated 4.2.89. But the Management did not obey the direction of the inspector. In the writ petition, the Petitioner has challenged the notice dated 4.2.89.

The learned Single Judge has held that the Petitioner was reverted from the post of Vice-Principal to his substantive post of Assistant Teacher in violation of the rules of natural justice and that the school is amenable to the writ jurisdiction of the High Court for the management did not object to the application of the Assam Aided Higher Secondary, High and Middle School Management Rules, 1976 (''Rules for short), and "apart from public duty to be performed by the Managing Committee there is interference by the Government agencies, namely, the Inspector of Schools, under relevant rules. The learned Judge quashed the impugned notice and directed the Managing Committee to reinstate the Petitioner as the Vice-Principal and granted consequential reliefs mentioned in the Judgment . Hence this appeal by the management.

Mr. D.K. Bhattaclmryya, learned Counsel for the Appellant, has made me following submissions. First, the Inspector of Schools has no control over the teachers as the school is purely a private institution run by a private body. Secondly, the school or its management is not subject to the writ jurisdiction of the High Court. Thirdly, there was no violation of principles of natural justice, while reverting the Petitioner from the post of Vice-Principal to the Assistant Teacher.

One of the questions which, therefore, arises for consideration is whether the Inspector of Schools has control over the teachers of the school in question on the facts and in the circumstances of the case. It is not disputed that the school does not receive grant-in-aid from the State Government, that is to say, the school is purely a private institution. However, the order dated 30.5.87 of the Inspector of Schools (Annexure-G to the writ petition) indicates that the Inspector, in the exercise of the power under the Rules, reconstituted the Managing Committee. The Rules indicates that they apply to aided school. There is no indication that Rules apply to an unaided private school. It may be as a matter of courtsey, the management forwarded to the Inspector names of the persons proposed as office bearers and members of the Managing Committee, and the Inspector accordingly purported to reconstitute the Committee. The Rules do not give any such power to the Inspector. Recognition of a private school is dealt with by the Assam Education Department Rules and Orders. Under para 6 of that Rules and Orders, in respect of Managing Committee of a private recognised school, it is sufficient if the school is under the control of management of a regularly constituted committee in which teaching staff is represented.

Be that as it may, the order dated 31.3.76 appointing the Petitioner as temporary teacher with effect from 1.4.76 (Annexure-A. to the petition), the order dated 28.12.82 appointing the Petitioner as Vice-Principal (Annexure-B to the petition), and the order dated 5.10.88 confirming the Petitioner as Assistant Teacher with effect from 1.4.88 (Annexure-B)(1) so the petition) were made by the management without prior approval of the Inspector. If the rules are or were applied to the school, such appointments arc or were to be made with the prior approval of the Inspector of Schools under Rule 23(5) of the Rules. Therefore, merely because the Managing Committee was purportedly reconstituted by the Inspector of Schools, or the constitutions of the Managing Committee was purportedly approved by the Inspector, under the Rules, it cannot change the character of the school as an aided institution as the school does not receive grant-in-aid from the Government, and the power to appoint or to remove the teachers is not with the Inspector of Schools but with the Managing Committee although the Director of Public Instruction has the authority to recognise the school or to withdraw the recognition. It may be stated here that no rule or statute has been brought to our notice to show that the Inspector or the Director has control over the teachers of an unaided school in the matter of appointment or removal of teacher.

The next question which arisen for consideration is whether a writ of mandamus would lie against an unaided private body running a school.

Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, is a case where mandamus was issued to a Government aided college. The facts of that case were as follows. A trust was managing an affiliated college to which public money was paid as Government aid. The trust closed the college with the termination of services of all academic staff. The teachers demanded only arrears of salary, provident fund, gratuity and closure-compensation. They did not claim their continuance in service. One of the questions which came up before the Court for consideration was whether the trust which was not a statutory body was subject to writ jurisdiction. The Court held that the aided institution like the Government institution discharges public function by way of imparting education to the students, the service conditions of the academic staff are not purely of a private character, and the employment in such institutions is not devoid of any public character. In para 19 of the Judgment it was held:

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 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.

(emphasis added)

At para 20, it was observed:

In The Praga Tools Corporation Vs. Shri C.A. Imanual and Others, this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statures even though they are not public officials or statutory body.

In para 21, it was held:

Here again we may point out that mandamus cannot be denied on the ground that the duly to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smiih states. To be enforceable by mandamus a Public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract'' (Judicial Review of Administration Act 4th Ed. (p.540), We share this view.

In Unni Krishnan v. State of A.P. (1993) J SCC 645 the Supreme Court has inter alia held:

The citizens of this country have a fundamental right to education. The said right flows from Article 21. This right is, however, not an absolute right. Its content and parameters have to be determined in the light of Articles 45 and 41.

The obligation created by Articles 41, 45 and 46 of the Constitution can be discharged by the State cither by establishing institutions of its own or by aiding, recognising and/or granting affiliation to private educational institutions.

A citizen of this country may have a right to establish educational institution but no citizen, person or institution has a right, much less a fundamental right, to affiliation or recognition, or to grant-in-aid from the State. The recognition and/or affiliation shall be given by the State subject only to the conditions set out in, and only in accordance with the scheme contained in the Judgment .

In respect of nature of function discharged by private educational institutions, it was observed at Para 77 that they discharge public duty, and after considering the decision in Andi Mukta Sadguru (supra), the Court, at para 79, observed:

Inspite of it, if the emphasis is on the nature of (sic) on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the educational institutions receiving aid it should be held that it is a public duty. The absence of aid does not detract from the nature of duty.

(emphasis added)

In view of tire above observation, a private institution, whether or not it receives grant-in-aid, performs or discharges public duty in so far as it concerns imparting of education; and the question, whether such an institution will be amenable to writ jurisdiction depends upon the nature of the right-duty relationship between the institution and other persons.

The question then is,- Whether a writ shall lie against the management of the school in question for the relief claimed by the writ Petitioner? As already stated, the school is a recognised one and the relief prayed for in the writ petition is declaration that the resolution and notice for reversion is illegal. Therefore if the declaration is granted it will amount to reinstatement of the Petitioner as the Vice-Principal of the school as a consequence to the declaration. The legal status of an employee in a privately managed college and whether a contract for personal service can be specifically enforced came up before the Supreme Court in Vaish Degree College v. Lakshmi Narain AIR 1976 SC 888 : (1976) 2 SCC 58. The facts in that case were thus. Vaish Degree College which was registered under the Registration of Co-operative Societies Act was initially affiliated to Agra University and later to the Meerut University. The service of the Principal of the college who was appointed after obtaining formal approval of the Vice-Chancellor was terminated about two years later. The Principal challenged the order of termination in a suit filed by him. The Supreme Court has, after considering the earlier decisions of the Court, held;

On Consideration of the authorities mentioned above it is clear that a contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognised exceptions - (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute.

A similar question again came up for consideration in Dipak Kumar Biswas Vs. Director of Public Instruction and Others, In that case Dipak Kumar was appointed lecturer in English in Lady Keans Girls College, Shillong which was a Government aided college. Later his services were terminated. The Supreme Court refused to grant declaration dial Dipak Kumar continued to be in service of the college and that he was entitled to all the benefits following from the declaration. However, the Supreme Court, by exercising me power under Article 136 of the Constitution, directed the State of Meghalaya to grant three years'' salary and allowances to the teacher with effect from the date of termination.

In Andi Mukta (supra), at para 12, it was observed:

The decision in Vaish Degree College was followed in Deepak Kumar Biswas case. 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.

At para 14, it was observed thus:

If the rights art 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.

(emphasis added).

The law laid down by the Supreme Court in above cited cases may now be summarised. A service contract cannot be specifically ''enforced except in the cases of civil servant, workmen under the industrial laws, and employee or officer under statutory body and governed by the statute. 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.

Althouth a private educational institution performs public duty in so far as imparting of education is concerned, it may not discharge public duty in other matters. The present case is purely of a private institution, and the management of the school is also a private body. Therefore, if the right of the employees in this school is purely of a private character, the management performs no public duty in this regard. The Petitioner is an employee of a private body. He is not a civil servant nor a workman under the industrial law. This being the position, if the Petitioner is directed to be reinstated in service it would be against the preponderant judicial pronouncement of the Court that a service contract cannot be specifically enforced. Therefore, the alleged right of the Petitioner in this case is of a private character, and no mandamus can issue and no petition for mandamus will lie.

Learned Single Judge issued ''he writ on the ground that principle of natural justice was violated. Even if a writ lies against the management of the school, it is to be examined whether principle of natural justice is attracted in such a case.

The next question which, therefore, arises for consideration is whether the principles of natural justice would be attracted in the present case. It has already been concluded that the school in question is a private institution (not Government aided school), and that the alleged rights of the Petitioner are of purely a private character, Therefore, the law of master and servant shall apply in such a case. This being the situation, no prior notice or affording the servant of an opportunity to have his say is required before termination or dismissal. If the servant sues the master and the master satisfies the Court that the master was justified in terminating or dismissing the service, it will be sufficient. The view taken by us finds support from a decision in Ridqway v. Hungerford Market, (1835) 3 Ad & EL 171, In that case, it was held that it was sufficient if, when the servant sued the master, the master satisfied the Court that he was justified in terminating the service (see also Halsbury''s Laws of England, 4th edition, Vol 16, para 648). Therefore, the principle of natural justice is not attracted in such a case.

Keeping the above principle in view, let us now examine the case on hand. The management has explained that the seniority was required to be determined as a complaint was made by Smti Ranta De to the effect that the Petitioner who was junior to her had been promoted to the post of Vice-Principal. Before determination of the seniority, the Petitioner was given notice to show cause as to why his seniority should not be counted from 1.6.78. He submitted his reply to the show cause and also participated in the meeting of the Managing Committee held on 4.2.89. The Managing Committee, on 4.2.89 after considering the materials before it, revived that the Petitioner was junior to Smti Ratna De by giving reasons thereof and Smti Ratna De was promoted (see Annexure-II to the counter). Promotion of a teacher who is senior to the Petitioner to the post of Vice-Principal and reversion of the Petitioner from the post of Vice-Principal which he was holding in the temporary capacity, we are of the view, was justified.

For the foregoing reasons, the Petitioner is entitled to no relief. Accordingly, the appeal is allowed and the Judgment of the learned Single Judge nude in Civil Rule No. 476 of 1989 is set aside. Writ petition is dismissed accordingly. No costs.