IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14524 of 2001 Shashi Kant Trivedy, Son of Yadupat Trivedy, Resident of Village Kushahi, Police Station Dinara, Post Office Kushahi, Police Station Dinara, Post Office Kariyari, District Rohtas, at present Science Teacher, Rajeshwari Sanskrit Uchch Vidyalaya Surajpura, District Rohtas. ---------- Petitioner Versus 1. The State of Bihar through the Commissioner and Secretary, Human Resource Development Department, Government of Bihar, Patna. 2. The Chairman, Bihar Sanskrit Education Board, Patna. 3. The District Education Officer, Rohtas at Sasaram. 4. Rajeshwari Sanskrit High School Managing Committee through its Secretary, Surajpura, District Rohtas. 5. The Headmaster, Rajeshwari Sanskrit High School, Surajpura, District Rohtas. ----------- Respondents ----------- 7 05.07.2010 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1(i) For issuance of an appropriate writ, preferably in the nature of mandamus commanding the Respondent authorities to perform their duties of paying salary including the arrears of salaries, in lieu of services rendered by the petitioner and taken by the respondent authorities; (ii) To hold and declare that the petitioner is an employee of the State Government in view of section 4 of the Bihar Ordinance No. 14 of 1990 (The Bihar Non-Gov. Sanskrit Schools (taking over of management and control) Second Ordinance, 1990) as the petitioner was appointed 2 temporarily against sanctioned posts in accordance with the prescribed standard by the Secretary, Bihar Sanskrit Shiksha Board, Patna, prior to 1990; (iii) For issuance of an order or direction commanding the Respondent Headmaster to allow the petitioner to make attendance in the attendance register; (iv) For issuance of an order holding and declaring that the decision, as contained in Annexure-9, is against the principle of natural justice, not in accordance with law and is fit to be set aside; (v) For granting interest at a rate of 18% per annum on the amount withheld by the respondent authorities without any sanction of law, payable to the petitioner on account of his salary.” At the outset, even before the learned counsel for the petitioner could begin to make his submission, both the counsel for the Bihar Sanskrit Shiksha Board (hereinafter to be referred to as ‘the Board’) as also the counsel for the State have raised a preliminary objection as with regard to the maintainability of the writ application on the ground that the entire cause of action of the petitioner would depend on the order of removal from service, which was passed by a private Managing 3 Committee. They have, therefore, submitted that such writ application questioning virtually the decision of the private Managing Committee will not be maintainable. In this regard, they have placed reliance on the judgment of this Court in the case of Chandra Nath Thakur Vs. The Bihar Sanskrit Shiksha Board & Ors. reported in 1999(1)PLJR 529 and also an order of the Division Bench of this Court dated 21st January, 2008 in LPA No. 670 of 1999 (Trigun Chand Thakur Vs. The State of Bihar & Ors.). Counsel for the Petitioner, while replying to the aforesaid preliminary objection, would submit that once the payment of salary was being made from the funds of the State Government, the removal of the petitioner from service even by the Managing Committee can be questioned in a writ application. He would further submit that the school of the petitioner comes from the category of 429 Sanskrit Schools whose matter is still pending before the Apex Court as against the judgment of the Division Bench of this Court in the case of Subhash Chandra & Ors. Vs. The State of Bihar & Anr. reported in 1994(2)PLJR 359. He would, therefore, submit that this writ application 4 should be kept pending till the decision of the Apex Court. In the considered opinion of this Court, this writ application was filed in the year 2001 and the relief prayed therein primarily relates to setting aside the order of his termination from service dated 17.10.1998 which has been passed by a private Managing Committee. The school of the petitioner is a recognized Sanskrit School and the Government through the Board only makes payment of salary by way of deficit grant but that will not confer jurisdiction on this Court to entertain a writ application against the private Managing Committee. It was precisely this very issue which was gone into by this Court in the order of the Division Bench in the case of Chandra Nath Thakur (supra), wherein, after analyzing the law as laid down by the Apex Court and this Court, the Division Bench, had held as follows:- “13. Coming to the next question – whether a writ can be issued against the Managing Committee, it would be relevant to notice that neither in the writ petition nor before the Board or the Chairman, any attempt was made by Sri Thakur to challenge 5 the order of termination. But as would appear from the impugned judgment, while questioning the validity of the order of the Chairman, an issue was certainly raised for consideration regarding the validity of such an order on the ground that the Managing Committee having been dissolved by the order of the Chairman, had no jurisdiction to pass an order of termination and what in compliance of the principles of natural justice, since no notice and proper opportunity was ever given to the petitioner, the order of termination has to be declared illegal. Therefore, in these backgrounds, the learned Judge after examining different authoritative pronouncements of the Apex Court as well as this Court, rendered the question in the negative that a teacher of privately managed school, even aided financially by the State Government can not maintain a writ petition against an order of termination, passed by the Managing Committee. 14. Mr. Jha of course placed reliance on a judgment of the Apex Court in the case of Shri Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & Ors. Vs. V.R. Rudani & Ors., A.I.R. 1989 SC 1607, as also a recent decision in the case of K. Krishnamacharyulu & Ors. Vs. Sri Venkateswara Hindu College of Engineering and anr., 6 A.I.R. 1998 SC 295, in support of his submission that although the Managing Committee of the School is purely a private body, writs under Article 226 can be issued, if there are infringement of a right of an employees guaranteed under the Constitution. Since the Managing Committee was dissolved by the Chairman, the order passed by such a committee was illegal. He further contended that even if these aspects are ignored, yet the order of termination was bad for want of compliance of principles of natural justice. Therefore, the petitioner, in absence of any alternative remedy would certainly be entitled to a relief under Article 226 of the Constitution. 15. In my view, the decisions of the Apex Court as noticed above, have to be construed and applied in the background of the facts and circumstances of those cases. Because undisputedly no law has been laid down so as to construe that even an order of termination passed by the private Managing Committee can be challenged in a writ jurisdiction. True it is an institution which gets aid from the State or the Board, has the obligation to provide facilities and opportunities to the teaching and non-teaching employees of such institution at par to the employees of similar institutions. Such employees can not be denied the same 7 benefit which are available to others. Therefore, in a case where unequal treatment is found amongst the teachers of similar category, certainly a remedy under Article 226 of the Constitution would be available as was also held in the case of K. Krishnamacharyulu & ors. Vs. Sri Venkaterswara Hindu College of engineering and anr. (supra). 16. But the facts of the case in hand being quite different, the analogy of the aforementioned cases, in my view, would not be applicable. In view of different authoritative and unbroken precedents by a longline decisions of the Apex Court including the cases of Executive Committee of Vaish Degree College, Shamli vs. Lakshmi Narain, AIR 1976 SC 888, Dipak Kumar Biswas vs. Director of Public Instruction & Ors., AIR 1987 SC 1422 and a decision of the Full Bench of this Court in the case of Smt. Manju Devi vs. The District Superintendent of Education, Bhagalpur & ors., 1987 PLJR 962, a teacher of a privately managed school, even though financially aided by the State Government or the Board, can not maintain a writ petition against an order of termination from service passed by the Managing Committee. Therefore, in my view, this question has rightly been rendered in the negative.” The further plea of the petitioner that the school was taken over with effect from 8 18.12.1989 and therefore, the Managing Committee had no power to terminate the service of the petitioner has to be only noted for its being rejected. The ordinance 32 of 1989 was promulgated on 18.12.1989 and after successive ordinances, the life of take over of the school came to be an end on 1.5.1992 when the State had decided not to continue the school as takenover school. This issue was decided by this Court in the case of Subhash Chandra (supra) wherein the Division Bench held that on account of being lapse of the last ordinance on 30.4.2002, all the 429 schools had gone back to their previous status of private school w.e.f. 1.5.1992. In this regard the factual matrix of the case of the petitioner in fact has been summarized in Annexure-B, a report of the Headmaster of the school submitted to the District Education Officer, wherein it was explained that:- ^^okLrfod rF; ;g gS fd Jh 'kf'kdkUr f=osnh dks izca/k lfefr }kjk Lohd`r in ds fo:) vLFkk;h :i ls fu;qDr dj lfpo laLd`r f'k{kk cksMZ dks vuqeksnu ds fy, Hkstk x;kA 28-05-1986 dks cSBd dh dk;Zokgh esa izLrko la[;k&03 esa ;g fu.kZ; fy;k x;k fd Jh 'kf'kdkUr f=osnh ch0,l0lh0 foKku f'k{kd dk 01-03-1986 ls fu;qfDr i= fn;k tk;] ijUrq laLd`r f'k{kk cksMZ ds vkns'k la0& 5286 fnukad 26-04-1989 }kjk Jh 'kf'kdkUr f=osnh dks izca/k lfefr ds izLrko ds vkyksd esa 9 fu;qfDr dk vuqeksnu vLFkk;h :i ls 01-04-1989 ls N% ekg ds fy, bl 'krZ ds lkFk iznku fd;k x;k fd rRdy bUgsa vizf'kf{kr Lukrd vFkZkr vkbZ0,0 vizf'kf{kr osrueku fn;k tk;A buds LFkk;h fu;qfDr ds fy, fu/kkZfjr izfdz;k fu/kkZfjr vof/k esa viukbZ tk;A bl rjg Jh f=osnh dh fu;qfDr ij N% ekg ds vuqeksnu izkIr gS] pqfd budh fu;qfDr fof/kor izfdz;k viukdj ugha dh xbZ Fkh blfy, cksMZ ;g 'krZ j[kh dh fu;qfDr ds fy, fu/kkZfjr izfdz;k viukbZ tk;A bl rjg Jh f=osnh dh lsok 01-04-1989 ls N% ekg vFkZkr 30-09-1989 dks lekIr gks tkrh gSA ijUrq Jh f=osnh izca/k lfefr ds lg;ksx ls vukf/kd`r :i ls 31-03-1994 rd dk;Zjr jgs vkSj u;h izca/k lfefr ds laKku esa vius ij rFkk Jh f=osnh ds yxkrkj vuqifLFkr jgus ds dkj.k mUgs fof/kor dkj.k i`PNk iqNdj lsok ls 17-10-1998 dks gVk fn;k x;kA fnukad 17-10-1998 dks izca/k lfefr ds cSBd esa Jh f=osnh dks lsok ls gVkrs le; ;g Hkh fopkj fd;k x;k fd Jh f=osnh }kjk QthZ vuqeksnu i= fn[kkdj mUgksaus dqN le; dk osru Hkh ys fy;s gSa] tks vuqfpr gSA blfy, Jh f=osnh dh fu;qfDr ds vuqeksnu ek= N% ekg ds fy, vkSj buds }kjk QthZ vuqeksnu fn[kkdj osru izkIr dj fy;k x;kA mlds ckn fo|ky; ls yxkrkj vuqifLFkr jgus ds dkj.k izca/k dj fy;k x;kA mlds ckn fo|ky; ls yxkrkj vuqifLFkr jgus ds dkj.k izca/k lfefr }kjk bUgsa 17-10-1998 dks gVk fn;k x;kA Jh 'kf'kdkUr f=osnh ds dk;Zjr vof/k fnukad 01-03-1986 ls 31- 03-1994 rd jgk gS] ftlesa cksMZ }kjk 01-04-1989 ls N% ekg ds fy, vuqeksnu izkIr gksus ij mUgsa osru dk Hkwxrku gqvk vkSj Jh f=osnh 01-10- 1989 ls 31-03-1994 rd cksMZ ds QthZ vuqeksnu i= ds vk/kkj ij osru Hkwxrku izkIr fd;sA bl rjg 'kf'kdkUr f=osnh dks oS/kkfud :i ls f'k{kd ds in ij ugha j[kk tk ldrkA** Thus it is absolutely clear that the petitioner had confirmed in service even after 1.5.1992 and his order of removal/termination from service was passed by the Managing 10 Committee in its meeting held on 17.10.1998. It is true that appeal and cross appeal against the judgment of this Court in the case of Subhash Chandra (supra) has been filed in the Apex Court by both the Government as also the teachers but then there is no interim order by which the services of those teachers of 429 Sanskrit Schools have been directed to be continued as Government teacher. In that view of the matter, the Managing Committee, being the appointing authority, had definitely power and jurisdiction to terminate the service of the petitioner on 17.10.1998. Such decision of the Managing Committee, therefore, can only be assailed before the Civil Court. In this context, one may also usefully refer to the paragraph nos.9 & 10 of the aforementioned judgment of the Division Bench of this Court in the case of Trigun Chand Thakur (supra), which reads as follows:- “9. Learned counsel for respondent nos. 3 & 4, as well as 6 & 7, have advanced separate sets of submissions and have, in substance, submitted that the writ petition is not maintainable in view of the judgment of a learned Single Judge of this Court in Chandra Nath Thakur v. The Bihar Sanskrit Shiksha Board & Ors., 1988 PLJR 866, which was upheld by a 11 Division Bench and reported in 1999(1) PLJR 529 (Chandra Nath Thakur V. The Bihar Sanskrit Shiksha Board & Ors.). They have further submitted that there is no denying the position that the appellant was a school teacher in a privately managed school governed by its Managing Committee and, therefore, the State government or its functionaries or the Bihar Sanskrit shiksha Board have no jurisdiction over their disciplinary matters. It has very limited jurisdiction of ensuring that qualified persons are appointed as School teachers. They have also submitted on the strength of the aforesaid judgment that a suit alone is maintainable to test the correctness of the order of dismissal. They have lastly submitted that the consent order passed by this Court in CWJC No. 10698 of 1994 cannot confer jurisdiction on this court. 10. We have perused materials on the record and considered the submissions of learned counsel for the parties. Learned counsel for respondents 3 & 4, as well as 6 & 7, are right in their submission that it has been held in Chandra Nath Thakur (supra) that the State government or its functionaries or the Bihar Sanskrit Shiksha Board have no jurisdiction at all over the disciplinary matters of school teachers of a privately managed school governed by its Managing Committee. The said order passed by them can be tested in a suit alone. They are further right in their submission that the consent order 12 passed by this court in CWJC No. 10698 of 1994 cannot confer jurisdiction on this court and does not make the Managing Committee „State‟ within the meaning of Article 12 of the Constitution of India.” At this stage, counsel for the petitioner would submit that there are certain admissible payment of the petitioner prior to his termination from service for which the Secretary of the Managing Committee/Headmaster of the school has not submitted any salary bill. As a matter of fact, this Court cannot go into this aspect of the matter but if the petitioner’s working in the school in the aforesaid period is admitted and his services were also approved by the Board in permanent basis beyond a period of six months expiring on 30.9.1989, the Board and/or the present Drawing and Disbursing Officer, namely, the District Education Officer would take necessary action as with regard to the limited claim of payment of salary for the period from October, 1989 to March 1991. It is, however, made clear that this Court has not gone into the merit of such claim of the petitioner in this regard and has only 13 remitted the matter back to the authorities to consider the same strictly in accordance with law in the light of the recommendation made and bill submitted by the managing committee. Such claim of the petitioner, however, must be decided by the authority within a period of six months of filing of the representation by the petitioner before the District Education Officer, Rohtas. Thus, in the light of observations and direction given above, the present writ application, so far it relates to setting aside the order of termination of service of the petitioner, must be held to be misconceived and not maintainable and accordingly, the same is dismissed. Rsh (Mihir Kumar Jha, J.)