Nuri Islam Choudhary v. N. C. Hills Autonomous Council
2006-03-21
BIPLAB KUMAR SHARMA
body2006
DigiLaw.ai
JUDGMENT B.K. Sharma, J. 1. By means of this writ petition, the three petitioners have called in question the orders by which their service as Assistant Teacher in M.E. School have been dispensed with. 2. The petitioners were appointed as Assistant Teacher by the managing Committee of the school as per the resolution adopted by it. They were so appointed by three different orders dated 17.7.1993, 26.10.1993 and 26.10.1992 respectively issued by the Secretary of the school. Their such appointments were approved by the jurisdictional Deputy Inspector of schools by order dated 9.1.1996. However, their such services were terminated by the impugned orders dated 13.9.1999 issued by the Secretary of the Managing Committee of the school. Long 3 1/2 years thereafter, the petitioners approached this Court by filing the instant writ petition. 3. There is no plausible explanation as to what caused the delay in invoking the writ jurisdiction of this Court. Only statement made in paragraph-9 of the writ petition is that the Secretary, Education Branch of the North Cachar Hills Autonomous Council kept on assuming to reinstate the petitioners in service. On the basis of such assurance, the petitioners also kept on waiting. However, the real reason for not approaching the court has been disclosed by the petitioners themselves in paragraph-10 of the writ petition which is quoted below: 10. That the petitioners humbly submit that the above Hokai (CH.) M.E. School would be provincialised very soon and the founder teachers and other teachers will be considered for provincialisation of their service. The petitioners in the instant case are founder teachers but they would be considered for provincialisation of their service at the time of the provincialisation of the above school. Unfortunately, the petitioners would be kept aside from provincialisation of their services only due to the above arbitrary and illegal termination. As such the benefit of provincialisation of the service of the petitioners will be extended to some other teachers if they are not re-instated would certainly be a discriminatory besides being violation of Principles of Natural Justice. 4. The respondents have filed their counter affidavit in which a preliminary objection has been raised regarding the very jurisdiction of this Court to entertain the writ petition.
4. The respondents have filed their counter affidavit in which a preliminary objection has been raised regarding the very jurisdiction of this Court to entertain the writ petition. The objection raised is that the school being not a provincialised one nor the same being under management and control of the N.C. Hills Autonomous Council, the action of the Managing Committee is not amenable to writ jurisdiction. As regards the claim of the petitioners that the school is in receipt of grants-in-aid which necessarily implies the control of the council over the school, it is the stand of the respondents that the grants-in-aid received by the school was only in the nature of ex-gratia granting arid such grant does not make the school instrumentality of the State. As regards the approval of the appointments of the petitioners, the respondents in their counter have stated that such approval of the D.I. of Schools, North Cachar Hills is being resorted to only to maintain the standard of education and the council does not have any authority and jurisdiction over the actions of the Managing committee of the school. All other contentions raised in the writ petition have been denied by the respondents. 5. Mr. B. Sinha, learned Counsel for the petitioner submitted that the services of the petitioners could not have been dispensed with in the manner and method in which the same has been done. Referring to the stand of the petitioners that since the school at the relevant point of time was in receipt of grants-in-aid, he submitted that such grants would necessarily imply control of the N.C. Hills Autonomous council over the school and accordingly the services of the petitioners could not have been terminated by the Managing Committee of the school. In this connection he also referred to the additional affidavit filed by the petitioner in which certain documents pertaining to grants being extended to the school have been annexed. 6. Mr. A.K. Goswami, learned senior Counsel and Standing Counsel, N.C. Hills Autonomous Council, assisted by Mr. S. Banik, learned Counsel submitted that the writ petition is not maintainable, the school Managing Committee being neither an authority within the meaning of the Article 12 of the Constitution of India nor being an instrumentality of the State and for that matter the N.C. Hills Autonomous Council.
S. Banik, learned Counsel submitted that the writ petition is not maintainable, the school Managing Committee being neither an authority within the meaning of the Article 12 of the Constitution of India nor being an instrumentality of the State and for that matter the N.C. Hills Autonomous Council. He also submitted that the writ petition is grossly barred by limitation and that delay and laches on the part of the petitioners in approaching the writ court stare on the face of it. 7. As noticed above, the writ petition was filed after 3 1/2 years of termination of the services of the petitioners. No explanation has been furnished as to what caused the delay in approaching this Court. Only explanation furnished is that the case of the petitioners would not be considered at the time of provincialisation of the school. In this regard, the relevant paragraph has been quoted above. Thus, as per the own showing of the writ petitioners, they were content with the orders of termination, but became alive to their alleged grievance when there was a move to provincialise the school. From the date of termination of the services of the petitioners, about 6 years have passed by now and if the posts have been filled up and the school has been provincialised, the rights of the new incumbents have crystallized. 8. Law is well settled that delay itself deprives a person of his remedy available in law. The petitioner did not even make any representation to the Managing Committee. After about two years of termination of their services, they purportedly made the first representation to the Inspector of Schools on 8.7.2001 followed by the representation dated 18.7.2002 to the Secretary, Education Department N.C. Hills Autonomous Council.
The petitioner did not even make any representation to the Managing Committee. After about two years of termination of their services, they purportedly made the first representation to the Inspector of Schools on 8.7.2001 followed by the representation dated 18.7.2002 to the Secretary, Education Department N.C. Hills Autonomous Council. As has been observed by the Apex Court in the case of T.S. Sadasivaswamy v. State of Tamilnadu AIR 1974 SC 2271 , it is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time, but it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward stale claims and try to unsettle settled matters. 9. Once it is held that the writ petition is barred by the delay and laches, the other aspect of the matter, namely, as to whether the remedy by way of a writ against the action of the Managing Committee of the school is available to the petitioners, need not be gone into. However, since the very jurisdiction of this Court has been called in question and argued extensively by the learned Counsel for the parties, I propose to deal with the same. 10. There is no dispute that it is the Managing Committee of the school which had appointed the petitioners. The Managing Committee also terminated their services. The challenge made in the writ petition is not in respect of any order passed by the authorities of the Education Department, Government of Assam or NC Hills Autonomous Council. There is no dispute that the school at the relevant time was not a provincialised one nor it was in receipt of any regular grants-in-aid as is understood in the context of the relevant rules. Till the termination of service of the petitioner, there was no control over the appointment and termination of the services of the teachers by any authority of the Government. It was purely a private affair between the Managing Committee of the school and the petitioners.
Till the termination of service of the petitioner, there was no control over the appointment and termination of the services of the teachers by any authority of the Government. It was purely a private affair between the Managing Committee of the school and the petitioners. That being the position, the challenge made to the resolution of the Managing Committee of the school terminating the services of the petitioner is not amenable to writ jurisdiction. 11. The resolution of the Managing Committee of the school impugned in this proceeding is a decision of just a private management governed by private law. It cannot be said to have involved any public law. As discussed above, a private body, i.e., the Managing Committee of the school has terminated the services of the petitioners. The Managing Committee, who at the relevant point of time did not have any control of the Government, was a pure and simple private body. This is precisely the reason as to why no approval of the Government or any authorities of the Education Department was required to be obtained towards termination of the services of the petitioners. Obviously, no decision of any officer of the Government is under challenge. 12. It is in the above context, the Apex Court in the cases of Francis John v. Director of Education and Ors. 1989 Supp (2) SCC 598 and Tikaram v. Mundikota Shikshan Prasarak Mandal and Ors. (1984) 4 SCC 219 noticing that the Director of Education, who was a public authority and whose orders had been questioned before the High Court held the writ petitions to be maintainable. In both the cases, the Managing Committee of the school terminated services of the appellants as school teachers. However, their such termination of service had the approval of the Deputy Director and Director, who were officers of the Government. It was the approval of the Government officers, which were put to challenge and not the decision of the Managing Committee of the schools as such. It was in that context, the writ petitions were held to be maintainable keeping the options open in case of not following the order of the Director by the Managing Committee. Both the cases were governed by statutory school code under which the Deputy Director/Director were the Government officers responsible for approval of the decision of the Managing Committee.
It was in that context, the writ petitions were held to be maintainable keeping the options open in case of not following the order of the Director by the Managing Committee. Both the cases were governed by statutory school code under which the Deputy Director/Director were the Government officers responsible for approval of the decision of the Managing Committee. Thus, in both the cases the principle that the decision of a private school is not amenable to writ jurisdiction was recognized. 13. In the instant case the school Managing Committee was not governed by any statutory rules nor the termination of services of the petitioner required any approval of any Government officer. Thus, the decision to terminate the service of the petitioner was purely a private affair between the school Managing Committee and the petitioner. Consequently, such a decision is not amenable to writ jurisdiction. 14. It cannot be said to be a case of having any control of the State Government or its authorities on the Managing Committee and its action, not to speak of in the realm of all pervasiveness. The Managing Committee being not an authority or even instrumentality of the State is amenable to writ jurisdiction under Article 226 of the Constitution of India. Jurisdiction under Article 226 can be exercised only when a body or authority, the decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy. In the instant case, neither the Managing Committee is a statutory body nor the employer-employee relationship involved any public duty. The School Managing Committee also did not have any control of any Government officers unlike the aforesaid two cases. This is precisely the reason as why the termination order by way of resolution of the Managing Committee did not involve any approval or disapproval of any authority of the Government. Even if any such approval was required, there being no disapproval of the same by the authorities to whom the termination orders were endorsed, such approval at least in the form of tacit approval must be held to be there. 15. The additional affidavit filed by the petitioners also does not help their case.
Even if any such approval was required, there being no disapproval of the same by the authorities to whom the termination orders were endorsed, such approval at least in the form of tacit approval must be held to be there. 15. The additional affidavit filed by the petitioners also does not help their case. Admittedly, at the time of passing the impugned resolution, the school was neither provincialised nor aided in the context of the rules holding the field so as to establish that there was all pervasive control of the Government over the school, more particularly in respect of appointment of teachers and dispensation of their services. In the case of General Manager, Kisan Sahakari Chini Mil Ltd. v. Shatrughan Nishad (2003) 8 SCC 639 , the writ petition was held to be not maintainable even after noticing that the Mil in question used to get some financial assistance from the Government. Such financial assistance in the form of ad hoc grants is not decisive of amenability to writ jurisdiction on the decisions of the Managing Committee of the private school. 16. In the case of Supriyo Basu and Ors. v. W.B. Housing Board and Ors. (2005) 6 SCC 269 the Apex Court noticing that the society in question being not a department of the State and also not being a creature of a statute, but merely governed by a statute, upheld the decision of the High Court by which it was held that the writ petition was not maintainable as no statutory action had been assailed. It was noted by. the High Court that the dispute involved in that proceeding essentially related to claims in the realm of private bodies. Same is the case in hand. 17. In the case of Shatrughan Nishad (supra), the Apex Court noticing the various earlier judgments held the writ petition to be not maintainable. That was a case relating to termination of service of the workmen of the Mil in question, a co-operative society. It was argued that even if the Mil is not an authority within the meaning of Article 12 of the constitution, writ application can be entertained as mandamus can be issued under Article 226 of the Constitution against any person or authority which would include a private person of body.
It was argued that even if the Mil is not an authority within the meaning of Article 12 of the constitution, writ application can be entertained as mandamus can be issued under Article 226 of the Constitution against any person or authority which would include a private person of body. After noticing that the dispute did not involve any public function, the Apex Court held that the jurisdiction of the High Court under Article 226 of the Constitution could not have been invoked. In the said case, the Apex Court summarized the expression "other authorities" after expressing a note of caution that it must be realized that it should not be stretched so far to bring in every autonomous body which has some nexus with the Government within the sweep of the expression, A note of caution was expressed that wide enlargement of the meaning must be tampered by wise limitation. 18. Thus, on both the above counts, i.e., the delay and laches on the part of the petitioners in approaching the writ court and that the writ petition is not maintainable, the writ petition fails. 19. The writ petition is dismissed, without, however, any order as to costs. Petition dismissed.