S Amended Petition IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. (Ct No. 3355 Z 2003 Petitioner : Narendra Kumar Tiwari, Aged about 37 ‘ years, Son of Shri Ramswaroop Tiwari, resident of Village West Chirmiri, Dafai—44, West Chirrniri, Distt. Korea—(C.G.) Versus :1. Regional Secretary, Office of Saraswati Shishu Mandir, Higher Secondary School, Ambikapur, Distt. Sarguja (C.G.) Respondents 2. Pradesik Secretary, Oftice of Saraswati Shiksha Sansthan, Behind Ayurvedic College; Saraswati Vihar, Raipur — (C.G.) 3. The Manager Saraswati Shishu Mandir, West Chirmiri, Distt. Korea—(C.G.) .5K“w;v h WRIT PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN THE NATURE OF MANDAMUS / CERTIORARI, ORDER / ORDERS, DIRECTION / DIRECTIONS PROHIBITION ETC. THE HIGH COURE‘ LHI— \ Lc \ \ \PE Y. \ x 1 f 1. Regianai $earewx‘y: H @:fi¢e o£ Sarawak: shishu Mamiih g‘k’nr $emndiar1 schooi, Ambikgapur, Digtt. Sarguj a ((2.63) a \G/. @v' a? t” / ff” ‘r" The {Eamaget‘ haWWteati wish}; iaanai‘x, 'x» ‘w‘;§§§& JSr \ W: w / - ' w n ' m£‘§££i* 1%) h ¢ west W; chimui. math “tea ”'3',“ ‘ \.. 3%” ag azhwkiagwh. hung}: g 13w WW3: v " 3%; magma: &mat1m. mag, wmum Mam 7 rawwmgavww"maah «$MW e t1 ‘ evwg6\§ i9‘ mc'\ * w m xga @ 1 5x f HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 3355 of2003 Sd/- ' r VA Satish K. Agnihomj t Judge PETITIONER Narendra Kumar Tiwari. VERSUS RESPONDENTS Regional Secretary & Others. Post for pronouncement ofjudgment & order on [oféay ofFebruary, 20] \\0 HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition N0. 3355 of 2003 PETITIONER Narendra Kumar Tiwari. VERSUS RESPONDENTS : Regional Secretary & Others. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Satish K. Agnihotri, J. Present: Ms. Pushpa Dwivedi, Advocate for the petitioner. None for the respondent No. 1 to 3. m: Shri A.V.Shridhar, Panel Lawyer for the State/respondent N0. 4. (Delivered on [.0. fiay 0f February, 201 1) . The petitioner seeks a direction to the respondents to allow the petitioner to work with them and further, to grant backwages including arrears and other service benefits. 2. The facts, in brief, as projected by the petitioner, is that the petitioner - was appointed as Lower Division Teacher in Gurudev Vidya Mandir, Manendragarh, and was posted there upto the year 1989. Thereafter, he was transferred to Saraswati Shishu Mandir, West Chirmiri and the petitioner remained at West Chrimiri, till 11.7.2002. Due to his and his ‘wife’s illness, he was on leave from 12.7.2002 to 14.7.2002 for three \ days. During this period, the transfer order dated 04.07.2002 \\\ (Annexure P/l) was passed transfem'ng the petitioner from West Chirmiri to Saraswati Shishu Mandir, thereafter attempted to join his duty at West Chirmiri but he was declined. Thus, this petition. Ms. Pushpa Dwivedi, learned counsel appearing for the petitioner would submit that the impugned transfer order was passed during his Kusmi. The petitioner, illness and as such submit that the petitioner has also sent a legal notice to the respondents on 24.03.2003 (Annexure P/5). Ms. Dwivedi would rely on clause 21.1 of the service code of Saraswati Shiksh Madhya Pradesh in support of her contention. She would further rely on a decision of the Supreme Court in KKrislmamacharyulu & Others v. Sri Venkateswara Hindu College ofEngz‘neerz'ng & Another]. a Sansthan, V Samz'ti v. Laxmi Narainzand Pear Lite Liners (P) Ltd. v. Manorama ’(1997)3 scc 571 \\ \ . a nr \\\ 2 AIR 1976 SC 888 Sirsz'3, to oppose maintainability of this petition under Article 226 of the Constitution of India. 5. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 6. With regard to maintainability of the writ petition, the Supreme Court, in KKrishnamacharyulu & Others] held as under: , "4...We are of the View that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the need of providing educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is asto which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, being the arm of the institution, is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide.” 7. In Executive Committee of Vaish Degree College Samitz‘z and Pear Lite Liners (P) Ltd.3, the issue involved was whether the Principal of the College who was terminated, is entitled to the benefit ofprovisions of Article 311 of the Constitution of India. Thus, the same is not pplicable to the facts of the case wherein the respondents have raised the question of maintainability and not the applicability. of the' statutory provisions. The question with regard to maintainability was neither in issue nor discussed in the-above judgments. \ 3 (2004) 3 SCC 172 a \\'b 8. Thus, the petition flled by the employee of a private institute which is providing educational opportunities to the children, is amenable to the writjurisdiction of this Court under Article 226 of the Constitution of India. 9. On pemsal, it is found that the application dated 11.7.2002 (Annexure P/Z) for grant of leave was rejected on the ground that the petitioner had already been transferred, by the Principal, Saraswati Shishu Mandir, West Chirmiri. The petitioner has further not produced any document to indicate that he was on leave on 04.07.2002, when the transfer order was passed. Contention of the petitioner that he could not have been transferred as he was holding the post of Varistha Acharya under the provisions of service code of Saraswati Shiksha Sansthan, Madhya Pradesh, is rejected. Clause 21.2 of the service code clearly states that on administrative ground, the Principal or Acharya can be transferred in public interest. Clause 21.1 provides that in normal course, there should not be transfer, but that does not restrict or prohibit transfer of Acharya and Principal in public interest and administrative exigency. 10. Clause 21 ofthe Service Code, reads as under: “(21) W~ 21—1 amen: 'ananadmtaniwa‘éiml arr wnmmmigttwadm mmimwemmww mammmaWW—wam ammimatwnweamw mmaagmmam \\\\ 21—2 WmwmaawIEfWWm awmwqwmmmmmm #mwml ($)Mmwm*$mf%a7§aw ww%ma%§&@mwsi#m (H)WWW$WHRWW¢§% Wsiéa amgwml w WW mamaéiwaim‘aéiwmw W$€WWW$WMH mWWI ,(25)WW$WEMWW$W wwm (a)ma%amm$a§a%m$wimw W1#m$mmmmwm$ ‘WWW$WWWWW§I WWMWWWWWWW WWWWWWWWWF’ 11.Except the self-same statement that the petitioner was on leave from W. 12.7.2002 to 14.7.2002, no other document has been produced to indicate that the petitioner, was on leave with prior permission. Even otherwise, the impugned transfer. order was passed on 04.07.2002 when the petitioner was not on leave and the petitioner had made application for leave on 11.7.2002, which was not granted. Thus, there is no illegality or infirmity in the impugned order. 12.For the reasons mentioned hereinabove, there is no merit in the case and the petition is dismissed. 13.No order asto costs. Sd/- Satish K. Agnihotri-Y ’— Judge Am it