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2024 DIGILAW 1803 (ALL)

Tanu Jetly v. The Chairman/Secretary

2024-08-02

SUBHASH VIDYARTHI

body2024
JUDGMENT : SUBHASH VIDYARTHI, J. 1. Heard Sri. Santosh Kumar Giri Advocate, the learned Counsel for the petitioner, who has submitted that the petitioner is working as a P.R.T. teacher in Army Public School, Bareilly Cantt., Bareilly and she is seeking a direction for continuance her service as such and for regularization her services. 2. It has been pleaded in the writ Petition that the petitioner was appointed on the post of P.R.T. teacher in Army Public School, Bareilly Cantt., Bareilly on contractual basis on 19.08.2010/18.07.2010 initially for a period of two years. On 16.07.2012, the petitioner was again appointed for a period of three years from 26.07.2012 to 25.07.2015. On 11.08.2015, she was appointed afresh for a period of three years. Another contract of service was executed on 14.08.2018 for three years and thereafter another contract of service was executed on 20.07.2018 for the period up to 19.07.2021. 3. Lastly, the petitioner was issued an appointment letter dated 27.09.2021 appointing her for a fixed tenure from 04.10.2021 to 31.03.2024. On 08.01.2024, the petitioner was sent an intimated that her service contract will expire on 31.03.2024 and she can appear for fresh selection. The petitioner had participated in the fresh selection process and a letter dated 18.03.2024 issued by the Principal of the School calling the petitioner for interview, has been annexed with the Writ Petition. It appears that the petitioner remained unsuccessful in selection and thereafter she has filed the Writ Petition seeking continuance and regularization of her service after termination thereof. 4. It has been pleaded that Army Public School is governed by Army Welfare Educational Society, New Delhi, Indian Army, Government of India, Ministry of Defence. The aforesaid pleading is incorrect as in Army Welfare Education Society v. Sunil Kumar Sharma, 2024 SCC Online SC 1683 the Hon’ble Supreme Court has held that Army Welfare Educational Society is a purely unaided private society established for the purpose of imparting education to the children of the army personnel including the widows and ex-servicemen. 5. Para 17 of the Writ Petition contains the following pleadings: “17. 5. Para 17 of the Writ Petition contains the following pleadings: “17. That the service of the petition are entitled to be regularized on the subject post as a P.R.T. Teacher in view of the long standing teaching and working experience of 25 years as a P.R.T. Teacher in Army Public School, Bareilly Cantonment, District Bareilly at par with other permanent teachers in view of Supreme Court Judgment dated 26.09.2023. A true copy of the judgment dated : 26.09.2023 passed by Hon’ble Apex Court is being filed herewith and marked as ANNEXURE-14 to this writ petition.” 6. As per the pleadings made in other paragraphs of the Writ Petition, the petitioner was initially appointed on 19.08.2010/18.07.2010 and she has worked for a total of 14 years under five different contract of service and the period of her last contract of service expired on 31.03.2024. The averment made in Para 17 of the Writ petition that the petitioner has long standing teaching and working experience of 25 years as a P.R.T. Teacher in Army Public School, Bareilly Cantonment, District Bareilly, is false on the face of the record. 7. The entire Writ Petition has been signed by Shammi Kumar, the husband of the petitioner, who has filed his affidavit in support of the Writ Petition. 8. The procedure to be followed for filing of cases in this High Court is provided in the Allahabad High Court Rules, 1952, Chapter I whereof deals with Preliminary matters. Rule 7 of Chapter I of the Allahabad High Court Rules provides that: “7. Date: (i) Every application, petition objection or memorandum of appeal, presented in Court, shall be signed on every page by the applicant, the petitioner, the objector or the appellant, as the case may be, or by an advocate appearing on his behalf and shall be dated.” 9. The petitioner has not signed the Writ Petition to take personal responsibility of the false averments made therein. 10. Without the Writ Petition having been signed by the petitioner herself, the Writ Petition ought not to have been accepted by the Registry of this Court and at least the Stamp Reporting Section ought to have pointed out this defect in the Writ Petition. 10. Without the Writ Petition having been signed by the petitioner herself, the Writ Petition ought not to have been accepted by the Registry of this Court and at least the Stamp Reporting Section ought to have pointed out this defect in the Writ Petition. The officials of the Stamp Reporting Section are advised to be careful in future and to examine whether the Writ Petitions comply with the provisions contained in Rule 7 of Chapter I of the Allahabad High Court Rules. 11. However, as the Writ Petition has come up before the Court and submissions on its admission have been heard, I proceed to examine the admissibility of the Writ Petition on the basis of the averments contained in it. 12. The document referred to in paragraph 17 of the Writ Petition as “the judgment dated 26.09.2023 passed by the Hon’ble Supreme Court is in fact an interlocutory order passed by the Hon’ble Supreme Court in S.L.P. (Civil) No. 7994 of 2022 titled Urmila Chauhan vs. The Chairman Army Public School and Others, which provides as follows: “6. We have perused the documents that have been filed by the respondent-School. Nothing adverse to the petitioner is revealed in the summary of the ACRs for the years 2009-2010 to 20162017. In fact, the petitioner was recommended for being appointed as a regular teacher as is apparent from the noting sheets of the respondent-school filed with the additional documents. However subsequently, the Chairman of the respondent-School advised that the matter be put up for consideration later on. 7. We are of the opinion that in view of the aforesaid facts and circumstances, it is a fit case where the respondent-School ought to reconsider appointing the petitioner on the subject post as a regular teacher. We therefore, direct the Competent Authority of the respondent School to reconsider the petitioner’s case for regularization to the subject post within six weeks from today, keeping in mind the aspects referred to hereinabove and file an affidavit immediately thereafter.” 13. The learned Counsel for the petitioner has placed an interlocutory order terming it as a judgment of the Hon’ble Supreme Court. Although the learned Counsel for the petition did not inform the Court about the final decision of Urmila Chauhan’s case, the aforesaid S.L.P. has been decided by means of an order dated 19.01.2024, in which the Hon’ble Supreme Court observed that: “6. Although the learned Counsel for the petition did not inform the Court about the final decision of Urmila Chauhan’s case, the aforesaid S.L.P. has been decided by means of an order dated 19.01.2024, in which the Hon’ble Supreme Court observed that: “6. In the peculiar facts of the instant case and particularly keeping in mind the fact that the management of the respondent-School has been shifting stands from time to time, sometimes placing on record its appreciation for the work done by the appellant and on other occasions, pointing out that she was not up to the mark, it is deemed appropriate to set aside the impugned judgment dated 30th 2 March, 2022, whereunder the directions issued by the learned Single Judge to regularize the appellant in service has been held to be unsustainable. As a consequence, the judgment dated 04th May, 2021 passed by the learned Single Judge is restored with a modification that since the appellant has not been discharging her duties from 04th May, 2021 till now, she will not be entitled to any back wages for the said period. However, her continuity of service and other consequential benefits shall not be adversely affected.” (Emphasis added) 14. Therefore, it is clear that the case of Urmila Chauhan (Supra) was decided without going into the question of maintainability of the Writ Petition filed against Army Public School and it was decided in view of the peculiar facts and circumstances of the case where the petitioner was recommended for being appointed as a regular teacher as is apparent from the noting sheets of the respondent-school filed with the additional documents. However subsequently, the Chairman of the respondent-School advised that the matter be put up for consideration later on and the management of the respondent-School has been shifting stands from time to time. 15. The question of maintainability of a Writ Petition under Article 226 against Army Welfare Society, which runs and manages Army Public Schools, has been decided by the Hon’ble Supreme Court in Army Welfare Education Society vs. Sunil Kumar Sharma, 2024 SCC Online SC 1683, wherein the Hon’ble supreme Court has framed and decided the following two questions of law: “a. Whether the appellant Army Welfare Education Society is a “State” within Article 12 of the Constitution of India so as to make a writ petition under Article 226 of the Constitution maintainable against it? In other words, whether a service dispute in the private realm involving a private educational institution and its employees can be adjudicated upon in a writ petition filed under Article 226 of the Constitution? b. Even if it is assumed that the appellant Army Welfare Education Society is a body performing public duty amenable to writ jurisdiction, whether all its decisions are subject to judicial review or only those decisions which have public law element therein can be judicially reviewed under the writ jurisdiction?” 16. The Hon’ble Supreme Court relied upon a precedent in the case of St. Mary's Education Society v. Rajendra Prasad Bhargava, (2023) 4 SCC 498 , in which the following two questions fell for the consideration of the Court: “(a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution? (b) Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?” 17. The final conclusion drawn in St. Mary's Education Society (Supra) is reproduced herein-below: “75. We may sum up our final conclusions as under: 75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public. 75.2. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. 75.2. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of “State” within the expansive definition under Article 12 or it was found that the action complained of has public law element. 75.3. It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a constitutional court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a “public function” or “public duty” be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service. 75.4. Even if it be perceived that imparting education by private unaided school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether “A” or “B” is employed by school to discharge that duty. It is immaterial whether “A” or “B” is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non-teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered with by the Court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty. 75.5. From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character. 76. In view of the aforesaid discussion, we hold that the learned Single Judge of the High Court was justified in taking the view that the original writ application filed by Respondent 1 herein under Article 226 of the Constitution is not maintainable. The appeal court could be said to have committed an error in taking a contrary view.” (Emphasis added) 18. After quoting the aforesaid law laid down in St. Mary’s case, the Hon’ble Supreme Court held in Army Welfare Education Society v. Sunil Kumar Sharma that: “42. In view of the aforesaid, nothing more is required to be discussed in the present appeals. We are of the view that the High Court committed an egregious error in entertaining the writ petition filed by the respondents herein holding that the appellant society is a “State” within Article 12 of the Constitution. Undoubtedly, the school run by the Appellant Society imparts education. Imparting education involves public duty and therefore public law element could also be said to be involved. However, the relationship between the respondents herein and the appellant society is that of an employee and a private employer arising out of a private contract. If there is a breach of a covenant of a private contract, the same does not touch any public law element. However, the relationship between the respondents herein and the appellant society is that of an employee and a private employer arising out of a private contract. If there is a breach of a covenant of a private contract, the same does not touch any public law element. The school cannot be said to be discharging any public duty in connection with the employment of the respondents.” 19. In view of the aforesaid pronouncement of law by the Hon’ble Supreme Court, the Writ Petition filed by the petitioner seeking continuance and regularization of her contractual service in Army Public School after termination thereof due to efflux of contract period, is not maintainable and it is dismissed as such at the admission stage itself.