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Gauhati High Court · body

2000 DIGILAW 311 (GAU)

Parimal Chakraborty v. State of Meghalaya

2000-11-03

D.BISWAS

body2000
The question to be answered in this writ petition is whether the teacher of private college receiving grant-in-aid from the State is entitled to invoke the writ jurisdiction of this Court under Article 226 of the Constitution for reinstatement to the post of Principal held by him before reversion. 2. The petitioner was appointed as Lecturer in the Department of Philosophy in Raid Laban College, Shillong. He responded to an advertisement and applied for the post of Principal in Tikrikilla College, Tikrikilla. The Governing Body on completion of selection process vide resolution dated 30.12.89 approved his appointment as Principal. Thereafter, the petitioner was appointed as Principal on regular basis with effect from 31.12.89 on a consolidated pay of Rs.2,000 per month. Because of certain alleged irregularities and deficiencies on his part, the Governing Body vide resolution dated 25.6.98 decided to degrade him to the post of Lecturer. The respondent No.4 vide order dated 17.6.98, while forwarding the copy of the resolution of the Governing Body, directed him to hand over the charge of the office of the Principal to respondent No. 5 and continue to work as Lecturer of Philosophy against non-sanctioned post. Accordingly the petitioner handed over the charge of the office of the Principal on 6.7.98 to the respondent No.5 and submitted a representation for reinstatement to the post of Principal. The said representation was not considered and hence, the petitioner preferred this petition for reliefs indicated above. 3. I have heard Shri S. Dutta, the learned counsel for the writ petitioner and also Mr. BP Maizal, Mr. MK Deb and Mr. SK Deb, the learned counsel for the respondents. 4. It has been contended on behalf of the respondents that the Tikrikilla College is purely a private college receiving only ad hoc grant from the State Government and as such, not amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution of India. In support of this contention, reliance has been placed on the decision in Dipak Kumar vs. Director of Public Instruction, Meghalaya & others, AIR 1987 SC 1422 . In this case before the Supreme Court, the status of Lady Keane Girls College, Shillong was under consideration. In support of this contention, reliance has been placed on the decision in Dipak Kumar vs. Director of Public Instruction, Meghalaya & others, AIR 1987 SC 1422 . In this case before the Supreme Court, the status of Lady Keane Girls College, Shillong was under consideration. After consideration of the decision of the Supreme Court in Vaish College vs. Lakshmi Narain, AIR 1976 SC 888 and J. Tiwari vs. Jwala Devi Vidya Mandir, AIR 1981 SC 122 , the Supreme Court held as follows : “12. The law enunciated in these decisions stand fully attracted to this case also. Even though the Lady Keane Girls College may be governed by the statutes of the University and the Education Code framed by the Government of Meghalaya and even though the college may be receiving financial aid from the Government it would not be a statutory body because it has not been created by any statute and its existence is not dependent upon any statutory provision.” 5. On the conclusion as above, the Supreme Court refused to grant any relief to the appellant primarily on consideration of the fact that the said college was not a creation of any statute. However, the Supreme Court in exercise of power under Article 136 of the Constitution directed the college authorities to pay three years salary and allowances to the writ petitioner. The respondents also cited the decision of the Supreme Court in Govt of Assam vs. Ajit Kumar Sarma, AIR 1965 SC1196 and a decision of a Division Bench of this Court in Governing Body of Women's College & others vs. Alpana Syam, 1994 (1) GHC 273. In Ajit Kumar Sarma (supra), the Supreme Court observed that the Rules for the purpose of grants-in-aid being merely executive instructions do not confer any kind of right on the teacher to apply for a Mandamus. The decision of this Court rendered in Silchar Collegiate School vs. Devi Prasad Bhattacharjee, 1993 (2) GLJ 312 has also been referred to. 6. The learned counsel for the petitioner argued that the decisions relied upon by the respondents no longer hold the field. The powers of the Court under Article 226 have been widened and it is available against any person or authority discharging or performing public duty. 6. The learned counsel for the petitioner argued that the decisions relied upon by the respondents no longer hold the field. The powers of the Court under Article 226 have been widened and it is available against any person or authority discharging or performing public duty. It is further submitted that the college in question is governed by the Rules and Regulations framed by the Government and is in receipt of grants-in-aid on stipulated terms. It is imparting education amongst the students and is catering to the need of the educational opportunities to the citizens which is the responsibility of the State. There being an element of ' public interest ingrained in the matter, the teachers of any private college receiving grants-in-aid and affiliated to the University are also entitled to avail the constitutional remedies provided under Article 226 against any wrong caused in violation of law or the principles of natural justice. 7. The learned counsel has placed reliance on a number of decisions of the Supreme Court in support of the above contention. In Unni Krishnan vs. State of Andhra Pradesh, (1993) 1 SCC 645 , the Hon'ble Supreme Court held that a private body performing public duty is amenable to writ jurisdiction. The Supreme Court held that under Article 226 writ can be issued to any person or authority for enforcement any of the fundamental rights or any 'other purpose'. In para 79, the Supreme Court further observed that if the emphasis is on the nature of duty, 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 a public duty. The absence of aid does not detract from the nature of duty." This observation of the Supreme Court with regard to private institutions is indicative of the status, the private institutions enjoy. In K. Krishnamacharyulu & others vs. Sri Venkateswara Hindu College of Engineering & another, AIR 1998 SC 295 , while dealing the claim of the teachers of private institutions for parity of pay, the Supreme Court held as follows: “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 needs of the educational opportunities. 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 needs of the educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the order issued by the Government. The question is as to 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, the arm of the institution is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. It would be a different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit which is available to others. Accordingly we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on par with Government employees under Article 39 (d) of the Constitution.” 8. The above judgment makes it clear that the teachers who are arms of the institutions are entitled to enforce parity in pay by availing the remedy provided under Article 226. The parity was allowed on the basis of an executive order de hors any statutory provision. This otherwise means that in just and proper case where injustice is palpable, the Court should not hesitate to exercise its power under Article 226 to remove the same. 9. A Full Bench of Punjab and Haryana High Court dealt with the matter in details in the case of Miss Ranveet Kaur vs. The Christian Medical College, Ludhiana & another, AIR 1998 Punjab and Haryana 1. In this case, the High Court after taking into consideration the relevant decisions of the subject held: “37. It is thus, clear that the old and conservative view regarding the maintainability of writs against the State or its instrumentalities is giving way to 'a liberal meaning'. The power under Article 226 is no longer confined to the issue of writs against statutory authorities and instrumentalities of the State. It covers “any other person or body performing public duty”. Medical Colleges are supplementing the effort of the State. These cannot survive or subsist without recognition and/or affiliation. The power under Article 226 is no longer confined to the issue of writs against statutory authorities and instrumentalities of the State. It covers “any other person or body performing public duty”. Medical Colleges are supplementing the effort of the State. These cannot survive or subsist without recognition and/or affiliation. The bodies which grant recognition are required to ensure that the institution complies with Article 14 of the Constitution. These decisions represent a quantum jump from 'the tests' in Ajoy Hasia vs. Khalid Mujib, AIR 1981 SC 487 , to a liberal meaning to the term 'authority' in Article 226. 38. A private educational institution receiving aid from state funds may not be a 'State' as defined under Article 12. Yet, Article 29 (2) confers a fundamental right on all citizens not to be discriminated against in the matter of admission to such an institution on ground only of religion, caste, language or any of them. If a citizen is denied admission by such an institution on any of the grounds specified in Article 29 (2), can it be said that the aggrieved person cannot seek a writ for the enforcement of his rights either under Article 32 or 226 on the ground that it happens to be a private educational institution ? Certainly not.” 10. The question has been dealt with by the Supreme Court in Chandigarh Administration & others vs. Mrs Rajni Vali & others, 2000 AIR SCW 153. The relevant observation is as follows : “6. The position has to be accepted as well as settled that imparting primary and secondary education to students is the bounden duty of the State Administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the State has enacted statutes and framed Rules and Regulations to control/regulate establishment and running of private schools at different level. The State Government provides grant-in-aid to private schools with a view to smooth running of the institution and to ensure smooth that the standard of teaching does not suffer on account of paucity of funds. It needs ho emphasise that appointment of qualified and efficient teachers is a sine qua non for maintaining high standard of teaching in any educational institution. It needs ho emphasise that appointment of qualified and efficient teachers is a sine qua non for maintaining high standard of teaching in any educational institution. Keeping in mind these and other relevant factors this Court in a number of cases has intervened for setting right any discriminatory treatment meted out to teaching and non-teaching staff of a particular institution or a class of institution.” 11. It would, therefore, appear that a private educational institution imparting education to the student is discharging the functions of the State. It is a public duty and writ would lie against such institutions. In K. Krishnamacharyulu & others (supra), teachers of the private educational institutions have been granted relief under Article 226 for parity in respect of pay. When the teachers of a public educational institutions are entitled to avail remedies under Article 226 of parity in pay, there cannot be any reason for debarring them or disqualifying them from getting 'equal protection of laws' in respect of other service conditions. If a teacher in a private institution receiving grant is meted with unjust or unfair treatment or has been denied natural justice to the detriment of his service career, he will certainly be entitled to 'the equal protection of the laws' as envisaged under Article 14. 12. The teachers of educational institutions established under statutory provisions or under the control of State are entitled to vindicate their grievances availing remedies under the Article 226, therefore, there must exist justifiable reasons for refusal of the same to the teachers of private institutions. Non availability of the legislative shield cannot be criterion for such refusal. It is for e this reasons in K. Krishnamacharyulu & others (supra) while giving effect to an executive order held that the writ is maintainable. This decision of the Supreme Court has to be read in a larger amplitude. 13. Here it will be of great significance to quote a passage from the Constitutional Law of India by H. M. Seervai (para 9.8, page 439): “9.8. Since the new doctrine has been propounded by Judges without asking and answering the question what is meant by 'the equal protection of the laws' ? We must answer that question. If all men are created equal, and remained equal through out their lives, then the same laws would apply to all men. Since the new doctrine has been propounded by Judges without asking and answering the question what is meant by 'the equal protection of the laws' ? We must answer that question. If all men are created equal, and remained equal through out their lives, then the same laws would apply to all men. But we know that men are unequal; consequently a right conferred on persons that they shall not be denied 'the equal protection of the laws' cannot mean the protection of the same laws for all. It is here that the doctrine of classification, (the old doctrine) steps in, and gives content and significance to the guarantee of the equal protection of the laws. According to that doctrine equal protection of the laws must mean the protection of equal laws of all persons similarly situated. To separate persons similarly situated from those who are not, we must discriminate, that is, 'act on the basis of a difference between' persons, or 'observe distinctions carefully' between persons who are and persons who are not similarly situated. But as the distinction is to be made for the purpose of making a law, how must the distinction be related to the law? This is answered by the central test for a permissible classification: “Permissible classification must satisfy two conditions, namely, (i) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) the differentia must have rational relation to the object sought to be achieved by the statute in question” with the qualification that “the differentia and the object are different so that the object by itself cannot be the basis of the classification. A law based on a permissible classification fulfils the guarantee of the equal protection of the laws and is valid; a law based on an impermissible classification violates that guarantee and is void. 14. To conclude, it may be stated that classification is permissible when two conditions are satisfied, that is (i) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others and (ii) the differentia must have rational relation to the object sought to be achieved. 14. To conclude, it may be stated that classification is permissible when two conditions are satisfied, that is (i) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others and (ii) the differentia must have rational relation to the object sought to be achieved. In the instant case, the teachers of the private institution receiving grant from the State and affiliated to the University are discharging the same duties as that of the teachers of Govt institutions or of the institutions which are created under the statute; and they all are discharging 'public duty' in aid of constitutional mandate. Merely becaflse they are not employees of the State Govt or the institutions created under the statute, it would be impermissible classification to place them as a different group to deny them the remedies under Article 226 for preservation and protection of their service rights. Any decision the way other is likely to have d a deterrent effect on the objective sought to be achieved. The duty performed by two sets of teachers is in aid of constitutional mandate and, therefore, is would be unjust to classify the teachers of private institutions as a class distinct from the other. 15. In the instant case, the writ petitioner has been reverted back to the post of Lecturer of Philosophy from the post of Principal without initiation of any disciplinary proceeding. The writ petitioner was not given any chance to represent his case. He was an important functionary of the college discharging public duty and as such, he should not have been penalized in the manner as has been done. Even the Director of Higher and Technical Education, Meghalaya in his .action recommended that the petitioner be reinstated with immediate effect "for a period of one year without claim of arrear pay" and further suggested that his performance should be watched during that period. 16. For the reasons given above, I am of the opinion that this is a case which calls for interference by this Court in exercise of its powers under Article 226 to remove the injustice caused to the writ petitioner. 17. In the result, the writ petition is allowed and the impugned resolution dated 25.6.98 and the consequential order of reversion passed on 17.6.98 are hereby set aside. 17. In the result, the writ petition is allowed and the impugned resolution dated 25.6.98 and the consequential order of reversion passed on 17.6.98 are hereby set aside. The respondents are directed to reinstate the petitioner to the post of Principal and to allow him to continue as such without any disturbance except in due course of law. The respondents may like to initiate an enquiry against the petitioner, if they so desire, and pass appropriate orders on completion thereof after affording reasonable opportunity to him to represent his case. The matter with regard to the payment of back salary is left to the authorities for a decision only after hearing the petitioner. No order as to costs.