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2013 DIGILAW 199 (JHR)

Lalit Kumar v. State of Bihar

2013-02-07

APARESH KUMAR SINGH

body2013
JUDGMENT: By Court:-Heard the counsel for the parties. 2. The petitioner has been terminated from service by the impugned order dated 12.8.1999(Annexure-9) by the respondent no. 8. The petitioner has challenged the same inter-alia on a number of grounds such as (a) that the impugned order of termination has not been passed by the appointing authority i.e the Chairman, Chhotanagpur Diocesan Education Society, who as per Annexure-1 had issued the letter of appointment to the petitioner. (b) that the procedure for initiation of a departmental proceeding and its conduct have not been followed by the respondent- managing committee of the school. (c) that the order of termination is not yet approved by the respondent No.2, Vidyalaya Sewa Board in whose place now the competent authority under department of Human Resource Development, Government of Jharkhand has entered into its shoes, which is in contravention of specific provisions of Section 18(3)(gha) of the Bihar Non-Government Secondary School(Taking over of Management & Control) Act, 1981. 3. According to the petitioner, he was working as acting principal of St. Columba's Collegiate High School, Hazaribag and, thereafter, he was appointed as principal of St. Paul School, Ranchi by the respondent no. 5 vide letter of appointment dated 5.6.1992 and approval of the same was granted by the Vidyalaya Sewa Board(Respondent No. 2) intimated vide letter dated 4.12.1993. Thereafter, the petitioner was working to the satisfaction of the respondent- authorities while he was taken by surprise on the issuance of the order of suspension on 3.2.1999 (Annexure-4). Further, his salary was with held from April, 1997 onwards and later on a chargesheet was issued on 24.2.1999(Annexure-5). The petitioner replied to the same vide his reply dated 30.3.1999(Annexure-6). The petitioner, however was totally in dark about the proceedings and suddenly he was served with second show cause on 31.7.1999 seeking explanation as to why his services be not terminated. In response to that petitioner furnished a detailed reply(Annexure-8) but the respondent no. 8 proceeded to terminate the services of the petitioner by the impugned order dated 12.8.1999(Annexure-9), which is under challenge in the present writ petition. 4. It is not in dispute that the petitioner is an aided minority school which is covered under the provisions of Bihar Non-Government Secondary School (Taking over of Management & Control) Act, 1981. 8 proceeded to terminate the services of the petitioner by the impugned order dated 12.8.1999(Annexure-9), which is under challenge in the present writ petition. 4. It is not in dispute that the petitioner is an aided minority school which is covered under the provisions of Bihar Non-Government Secondary School (Taking over of Management & Control) Act, 1981. The minority school like the present one in which the petitioner was working, though is entitled to conduct disciplinary proceeding against its employee like the petitioner in accordance with the bylaws and Rules framed for the said purpose and applicable to the employees of the said school but under the provisions of Section 18(3)(gha) of the Act of 1981, it is required to seek approval of any such order of punishment passed against an employee. The aforesaid issue as to the applicability of Section 18(3) have been subject matter for consideration before the Patna High Court also in the matter of teacher of an aided minority school in the case of Mubarak Hussain Vrs. State of Bihar & others reported in 1993(1) PLJR 407. It was held in the said case that the order of termination passed against the teacher must also be approved by the School Service Board in terms of Section 18(3)(gha) of the Act. Further, the provisions of Section 18(3) which is applicable to the present case was also under consideration before the Hon'ble Supreme Court in the case of All Bihar Christian Schools Association & another Vrs. State of Bihar & others reported in 1988 PLJR SC 7. The Hon'ble Supreme Court, in the judgment rendered in the aforesaid case has held that the provisions of the said Act do not interfere with the fundamental right of the minority institution guaranteed under Article 30(1) of the Constitution of India. It also held specifically in relation to the applicability of the provisions, which are in question in the present case as well, that in case of any disciplinary action by the minority institutions, the institution has to obtain the approval of the competent authority under relevant provisions of Section 18(3)(d) of the Act. It was further observed that the School Service Board is vested with limited power to ascertain whether the disciplinary proceeding is taken in accordance with the Rules framed by the managing committee or not. It was further observed that the School Service Board is vested with limited power to ascertain whether the disciplinary proceeding is taken in accordance with the Rules framed by the managing committee or not. The opinion of the Hon'ble Supreme Court, specifically para 17 of the said judgment is quoted here under for better appreciation. “Para 17:- In Ahmedabad St. Xaviers College Society & Another Vrs. State of Gujrat and Another, this Court held that Sections 51A and 52 of the Gujrat University Act1949 as amended in 1972 could not be made applicable to a minority institution as under the aforesaid provisions no punishment could be inflicted by the management of affiliated college on a member of the staff unless it obtained approval of the Vice-Chancellor or an officer authorized by him. The Court held that the provision relating to grant of approval conferred blanket power on an outside authority without laying down any guidelines, it directly interfered with the minorities right to administer their institution. In Lilly Kurian Vr. Sr. Lewina & Ors. This Court again held that ordinance 33 framed under the Kerela University Act 1969 conferring right of appeal against the disciplinary action taken by a minority institution to the Vice- Chancellor was constitutionally invalid as it interfered with the disciplinary power of a minority educational institution. The Court further held that Ordinance 33 conferred a right of veto in disciplinary matters of minority institution, it did not lay down any guidelines instead, it conferred an uncanalised and unguided power of the appellate authority. The Court held that conferment of uncanalised and unguided appellate power on the Vice Chancellor resulted into grave encroachment on the right of the minority institution to enforce and cover its discipline in its administration. The Court emphasized that since the Vice- Chancellor's power was unlimited he could interfere with the orders of the minority institution inflicting punishment without there being any justified ground. The Ordinance was struck-down as it contained no guidelines for the exercise of the appellate power. In All Saints High School, Hyderabad Vrs. Government of Andhra Pradesh & Ors. this Court held that Section 3(1) and (2) of the Andhra Pradesh Recognized Private Educational Institution Control Act, 1975 could not be applied to a minority institution as the provisions contained therein encroached upon the fundamental right of minorities guaranteed to them under Article 30(1) of the Constitution. Government of Andhra Pradesh & Ors. this Court held that Section 3(1) and (2) of the Andhra Pradesh Recognized Private Educational Institution Control Act, 1975 could not be applied to a minority institution as the provisions contained therein encroached upon the fundamental right of minorities guaranteed to them under Article 30(1) of the Constitution. Section 3(1) contained an unqualified mandate that no teacher shall be dismissed except with the prior approval of the competent authority. Section 3(2) conferred appellate power on an outside authority to interfere with the disciplinary action taken by the manging committee of an education institution. This Court(majority) held that the unqualified power conferred on an outside authority which was made a judge of both, facts and law, the exercise of which was made to depend purely on subjective considerations, constituted an infringement of the right guaranteed by Article 30(1) of the Constitution. These decisions do not affect the view taken by us. As already discussed clauses(c) and (d) of Section 18(3) of the Act are regulatory in nature to ensure the educational standard of security of employment of teachers and no unguided, uncanalised, blanket power in the nature of veto or appellate power has been conferred on any outside agency against the disciplinary action taken by the management of a minority institution. The School Service Board is vested with limited power to see that the person proposed to be appointed possesses the requisite qualifications prescribed and that the prescribed method of selection was followed by the management. The choice of the persons for appointment continues to vest in the managing committee of the minority school. Similarly in disciplinary matters also the managing committee of a minority school has full power to remove, terminate or discharge a teacher, but it has to obtain the approval of the School Service Board, here again the School Service Board has a limited power to ascertain whether the disciplinary proceedings have been taken in accordance with the rules framed by the management itself, the School Service Board has no other power in the matter. These provisions do not suffer from the legal infirmities as pointed out in the aforesaid decisions”. It would also be apposite to quote the relevant provisions of Section 18(3)(gha) as it applies to the fact situation of the present case. These provisions do not suffer from the legal infirmities as pointed out in the aforesaid decisions”. It would also be apposite to quote the relevant provisions of Section 18(3)(gha) as it applies to the fact situation of the present case. “Section 18(3)(gha):- vidyalaya sewa board ke anumodan se prabandh samiti vidyalaya ke shikshakon ko hata sakegi, unki sewa samapth kar sakegi, unhe barkhasth kar sakegi athawa unhe padchute kar sakegi: Parantu prabandh samiti dwara kisi shikshak ke virudh ki gayi anushasnik karwahi ka anumodan karte samay board kewal is bath ki jantch kar sakega ki dand ki matra nirdharit karne ke purv ukt prayojanath banai gayi niyamwali aur prakriya ka samyak roop se paalan hua hai ya nahi, aur board, yathastithi is sambandh me kisi anya bath me nahi parega”. 5. From the submissions of the Respondent- State and the statement made in the counter affidavit filed on behalf of the District Education Officer, Ranchi, Respondent No. 4, it appears that the aforesaid legal position has not been disputed by them either. It further appears from perusal of the categorical statement made at para 8 of the said affidavit filed on 26.7.2000 that the impugned order has been issued by the managing committee of the school without any approval from the School Service Board . It further appears from the para 9 of the said counter affidavit that the respondent no. 4 had issued letter dated 15.9.1999 to the Managing Committee of the school in which various irregularities including the violation of Memorandum of Association of the School Management itself was pointed out which is annexed as Annexure-A to the counter affidavit. Further, though the school management had sent reply through its letter dated 27.9.1999, however no point wise reply or satisfactory reply has been sent by the School Management. In the aforesaid background it is pointed out that in view of the provisions of Section 18(3)(d) no approval was obtained before terminating the petitioner from service by the School Managing Committee, which shows grave violation of the provisions of the aforesaid act. 6. Counsel for the respondent- School, however has submitted that the interpretation of the aforesaid provisions of the Act of 1981 it has been held by the Hon'ble Supreme Court in the same judgment in the case of All Bihar Christian Schools Association Vrs. 6. Counsel for the respondent- School, however has submitted that the interpretation of the aforesaid provisions of the Act of 1981 it has been held by the Hon'ble Supreme Court in the same judgment in the case of All Bihar Christian Schools Association Vrs. State of Bihar & others (Supra) that the Managing Committee is not required to seek prior approval of the competent authority and that it may seek approval after taking action. 7. Be that as it may, it is not in dispute that the respondent- authorities of the School Service Board or its successor in the newly created State of Jharkhand under the department of Human Resource Development have not taken any decision in respect of grant of approval of such action of the Committee in terminating the petitioner from service. In that view of the matter, this Court, therefore, without going into the details of the stand of the rival parties, considers it proper to remand the matter to the competent authority under the department of Human Resource Development, Government of Jharkhand which has stepped into the shoes of the Vidyalaya Seva Board, in order to take appropriate decision in accordance with law so far as the impugned action of the respondent- Managing Committee of the school is concerned. The writ petition was filed in the year 1998 and the cause of action lies within the territory of the State of Jharkhand after its creation and the competent authority i.e. Vidyalaya Seval Board is substituted by the competent authority under the respondent- Government of Jharkhand. 8. In that view of the matter, the respondent- Director, Secondary Education, Human Resource Development Department, Government of Jharkhand is directed to take appropriate decision in the matter either through himself if he is so authorized or by placing it before the designated competent authority under the department within a period of 16 weeks from the production of the copy of this order. Needless to say that the impugned order which is under challenge will be subject to the out come of the said decision of the competent authority as indicated herein above. Counsel for the petitioner submits that in the instant writ application he also made a prayer for the grant of salary for the period from August, 1997 to January, 1999. Needless to say that the impugned order which is under challenge will be subject to the out come of the said decision of the competent authority as indicated herein above. Counsel for the petitioner submits that in the instant writ application he also made a prayer for the grant of salary for the period from August, 1997 to January, 1999. In this regard counsel for the respondent- Managing Committee submits that the salary particulars of the petitioner were sent to the District Education Officer, who has made the deduction. Be that as it may, the aforesaid competent authority should also take decision in respect of the aforesaid claim within the same period. The writ petition is disposed of in the aforesaid terms.