Dismissed

Mrs. Rupam Tewari v. Allahabad High Schools Society through Its Secretary, Allahabad and 2 Others

Allahabad HC24 May 2019WRIA/1807/2019

Case brief

AI extract

What is this about?

This bench examined the maintainability of a writ petition filed by a temporary teacher seeking reinstatement after termination. The Court held that since the appointment was purely contractual in a private institution, the writ jurisdiction under Article 226 could not be exercised to enforce the contract or grant specific relief.

What did the court decide?

The writ petition was dismissed with no order as to costs; no relief granted to the petitioner.

Mrs. Rupam Tewari Vs Allahabad High… — Contract and Commercial Disputes | Allahabad HC (2019)

¶1

¶2

Court No. - 25 RESERVED

¶3

Case :- WRIT - A No. - 1807 of 2019

¶4

Petitioner :- Mrs. Rupam Tewari Respondent :- Allahabad High Schools Society Through Its Secretary, Allahabad And 2 Others Counsel for Petitioner :- Dinesh Kacker Counsel for Respondent :- Desh Ratan Chaudhary

¶5

Hon'ble Prakash Padia,J.

¶6

1. Heard Sri Dinesh Kacker, learned counsel for the petitioner, Sri V.K. Singh and Sankalp Narayan learned counsel for respondent Nos.1 and 2 and Sri D.R. Choudhary, learned counsel for respondent No.3.

¶7

2. The petitioner has preferred the present writ petition with the prayer to quash the order dated 10.7.2017 issued by Dr. Vinita Eusebius Principal Girls High School & College, Allahabad. A further prayer is also made to issue a Mandamus restraining the respondent No.3/ Principal Girls High School & College, Allahabad from interfering in any manner in continuing the petitioner in service on the post of temporary teacher in Computer.

¶8

3. The facts in brief as contained in the writ petition are that there is a society known as Allahabad High Schools' Society, Allahabad. The aforesaid society governs two institutions namely Boys High School and College Allahabad and Girls High School and College Allahabad.

¶9

4. The petitioner was appointed on 2.4.2014 in Girls High School and College Allahabad as temporary teacher in Computer. The service of the petitioner was continued with artificial break in service as the nature of the post was of a permanent nature. The petitioner continued to work as a temporary teacher in computer up to 21.4.2017. The petitioner has submitted an application on 21.4.2017 for 14 days leave with effect from 22.4.2017 for her marriage.

¶10

5. It is contended that when the aforesaid application was taken up in the office of the Principal, the accountant of the Institution made insulting

¶11

¶12

remarks against the petitioner. In this regard, the father of the petitioner also made a complaint to the Circle Officer Civil Lines Allahabad. It is contended in paragraph 8 of the writ petition that in view of the aforesaid it is clear that the petitioner was granted 14 days leave. It is further contended that when after the period of 14 days came to end, the petitioner went to join her duties in the Institution on 8.5.2017. However, on that date the office staff intimated the petitioner that the Principal has given instructions for the petitioner to join her duties after the summer vacation. It is further contended that after summer vacation on reopening the Institution when the petitioner went to join her duties, the Principal handed over a letter dated 10.7.2017 to the petitioner discharging her from service on the allegation that she had not been attending the Institution since 22.4.2017. This is the order which is under challenge in the present writ petition.

¶13

6. It is contended that the petitioner was granted leave for 14 days for her marriage which was found correct as per the report of the Circle Officer Civil Lines Allahabad dated 3.5.2017. It is further contended that the letter dated 10.7.2017 was a revengeful and vindictive letter and a counter blast of the complaint made by the father of the petitioner. It is contended in paragraph 12 of the writ petition that the appointment of Principal and teachers were made as per memorandum of Allahabad High Schools' Society Clause 17 of the Memorandum of Allahabad High Schools' Society relates to General Power of the Governing Body. Clause 17 (g) empowers the Governing body to appoint Principal and Teachers of the College under the Society. Relevant portions of Clause 17(g) is reproduced below:-

¶14

“17. General Powers:- The Governing body shall have (subject to the provisions of Rule 18) full power to do all such acts and things as the Society could itself do, and which are not hereby or by Statutes expressly directed or required to be exercised or done by the Society in General Meeting; and in

¶15

¶16

particular the Governing Body shall have power.

¶17

(g) to appoint such terms as it deem fit the Principal and assistant teachers of the schools or colleges conducted by the Society; such persons being, if possible, communicant members of the Church of India, Pakistan, Burma and Ceylon, or of a Church in communion with it, and to suspend or discharge any principal and teacher.”

¶18

7. It is contended that the aforesaid provisions indicate that it is the Governing Body is appointing authority of Assistant Teachers and the aforesaid body could have the power to suspend or discharge such teachers. It is further contended that the age of retirement of the principal is 60 years for both the Institutions and the order which was passed against the petitioner by one Dr. Vinita Eusebius. after her retirement in the year 2014 since according to the Passport and PAN card her date of birth is 17.6.1954. Various other allegations are made in the writ petition regarding functioning of the Society and the writ petitions, filed in this regard before this Court. The Court is of the view that the aforesaid disputes does not have any relevance insofar as the controversy involved in the present writ petition is concerned.

¶19

8. Sri V.K. Singh and Sankalp Narayan learned counsel for respondent Nos.1 & 2 raised a primary objection that the writ petition against a private unaided minority institution as well as against the private Society is not maintainable before this Court. It is further argued that the writ petition is not maintainable at the behest of contractual appointee appointed in a private Institution. In this regard it was argued that the Institution as well as the Society in question are private bodies and receiving no aid in any form from the State Government. It is further contended that though the society in question is a registered society in terms of the Societies Registration Act, 1860 but only the dispute pertaining to the general functioning of the Society would be maintainable to writ jurisdiction under Article 226 of the Constitution of India. The

¶20

¶21

dispute involved in the present writ petition pertains to the appointment and termination of the petitioner on a contratual post and as such the writ petition is not maintainable.

¶22

9. In response to the same, It is contended by learned counsel for the petitioner that the order impugned dated 10.7.2017 is ex-facie punitive order. The service of the petitioner had been terminated on the ground that “You are not attending the School since 22.4.2017”. The order of termination is in fact a punishment order and as such could not have been passed until a show cause notice and opportunity had been granted to the petitioner. It is further contended that earlier writ petitions filed by the Management pertaining to the orders passed by the Assistant Registrar under Societies Registration Act, 1860, was duly entertained. It is further argued that in view of the Full Bench judgement of this Court in the case of Roychan Abrahim Vs. State of U.P. and 3 others passed in Writ A No.63708 of 2014 (judgement and order dated 26.2.2019), the writ petition filed by the petitioner is amenable to judicial review by this Court under Article 226 of the Constitution of India.

¶23

10. Heard learned counsel for the parties.

¶24

11. In the case of Vatsal Gupta Vs. State of U.P. and others 2015 (11) ADJ 161 wherein an issue pertaining to the private unaided minority institution namely La Martiniere College Lucknow was involved, the learned Single Judge was pleased to hold that no writ of certiorary or mandamus can be issued against the Institution.

¶25

12. Aggrieved against the aforesaid judgement, petitioner Vatsal Gupta filed a Special Appeal Vatsal Gupta Vs. State of U.P. and others reported in 2016 (1) ADJ 832 which was disposed of with certain directions which is quoted below:

¶26

(i) We direct that the appellant shall be allowed to pursue his educational career in Class XI and XII in the institution in question, provided he does not misconduct himself and for that purpose the institution shall grant him admission so that he is able to complete his course of Class XI and XII and appear in home as well as Board

¶27

¶28

examinations;

¶29

(ii) We direct the Board to exercise its powers and pass appropriate orders permitting the appellant to complete the aforesaid courses and also to allow him to appear in the examinations without detaining him on the ground of alleged shortage of attendance for which relaxation may be granted keeping in view the peculiar facts of the present case;

¶30

(iii) The appellant shall make good the deposit of the entire fees and other dues in relation to the pursuit of his studies and anyother demand by the institution according to the rules of the institution. In order ensure this, we direct that the appellant shall deposit a sum of Rs. One lac forthwith through a Bank draft with the institution which shall be subject to final accounting that will also be paid in relation to the dues of the school including fee etc. The appellant's father shall not raise any objections in relation to such realisation of finances that may be directed by the school from time to time;

¶31

(iv) The Principal of the institution shall be at liberty to take appropriate action and seek necessary orders from this Court in the event appellant's guardians indulge into any objectionable behaviour.

¶32

13. Against the aforesaid judgement and order passed by the High Court, a Special Leave Petition (C) No.3182 of 2016 Committee of Management , LA Martinere College Lucknow Vs. Vatsal Gupta and others has been preferred before the Supreme Court. The Apex Court after granting leave explicitly held that the writ petition against unaided private minority institution could not be entertained. The order passed by the Supreme Court dated 26.7.2016 is reproduced below:-

¶33

“Leave granted.

¶34

We have heard learned counsel for the parties.

¶35

Appellant No.1 is an unaided minority private institution. We see no reason how a writ petition against that institution could be entertained. The High Court was clearly in error in entertaining the writ petition and passing subsequent directions.

¶36

Under the circumstances, the appeal is allowed and the impugned judgment and order passed by the High Court is set aside.”

¶37

14. Counsel for the respondents are relied upon a Full Bench Judgement of this Court in the case of M.K. Gandhi and others Vs. Director of Education (Secondary) U.P., Lucknow and others reported in 2005 (3) UPLBEC 2187. It was held that a writ petition against a

¶38

¶39

private institution is not maintainable.

¶40

15. Aggrieved by the Full Bench Judgement of this Court, Committee of Management D.P.S. filed Civil Appeal No.339 of 2007 Committee of Management, Delhi Public School and another Vs. M.K. Gandhi and others reported in (2015) SCC 353 . The Apex Court held that the writ petition against a private institution is not maintainable as it is not a State within the meaning of Article 12 of the Constitution of India and the proper remedy for the teachers to file a civil suit for damages.

¶41

16. In the case of Ramesh Ahluwalia Vs. State of Punjab and Others reported in (2012) 12 SCC 331 , the Apex Court was pleased to hold that a private educational body performing public duty or discharging public function would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India. Following the said judgement, a full Bench of this Court in the case of Roychan Abrahim Vs. State of U.P. and 3 others passed in Writ A No.63708 of 2014 vide its judgement and order dated 26.2.2019 further reiterated the fact that private institutions imparting education to students from age of 6 onwards including higher education perform public duty primarily a state function.

¶42

17. The Full Bench of this Court in paragraph 56 of the case of Roychan Abrahim Vs. State of U.P. and 3 others (supra) that all Educational Institutions aided/unaided, run and managed by the minority/majority communities running education to the children from age of six on wards are subject to judicial review of this Court under Article 226 of the Constitution of India. Paragraph 56 of the aforesaid judgement is reproduced below:-

¶43

56. Education at every level is fundamental and is a matter of public importance; the country's future depends upon the same. Education is one of the most important function of the Indian State and it has no monopoly therein. The private educational institution aided/unaided, run and managed by the minority or majority communities rendering education to children/students from the age of six onwards cater to the obligation of the State to provide opportunity in education to the people to avail education. We accordingly hold that all these educational institutions are subject to

¶44

¶45

judicial review of the High Court under Article 226 of the Constitution of India.

¶46

In view of the same, this Court is of the view that the petition filed by the petitioner is subject to judicial review of this Court.

¶47

18. Second issue which is involved in the present writ petition is concerned namely whether a petition filed by a contractual employee is maintainable or not.

¶48

19. It is a settled law that if the appointment of an employee is not governed by any statute or statutory provisions or by any provision made under any authority of statute and the appointment is merely a contractual appointment, then no relief can be granted to such employee under Article 226 of the Constitution of India. If the employment is governed by a simple contract of employment and even if the employee is wrongfully dispensed with then the employee can claim damages.

¶49

20. In Executive Committee of U.P. State Warehousing Corporation, Lucknow Vs. C.K. Tyagi, AIR 1970 SC 1244 the Supreme Court held that the position in law is that no declaration to enforce a contract of personal service will be normally granted but there are certain exceptions. Relevant part of the judgement is quoted below:-

¶50

25. the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognized exceptions to this rule and they are: To grant such a declaration in appropriate cases regarding (1) A public servant, who has been dismissed from service in contravention of Article 311 (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute.

¶51

The exceptions which were curved out by the Supreme Court in this

¶52

aforesaid case is not available in the present case.

¶53

21. In Vidya Ram Misra Vs. Managing Committee Shri Jai Narain College (1972) 1 SCC 623 , the Apex Court held that it is well settled that when there is a termination of contract of service, a declaration that the contract of service still subsists would not be made in the absence of special circumstances, because of the principle that Courts do not

¶54

¶55

ordinarily enforce specific performance of contract of service. Relevant Paragraphs namely 4, 11, 12 and 15 are quoted below:-

¶56

4. it is well settled that, when there is a purported termination of a contract of service, a declaration that the contract of service still subsisted would not be made in the absence of special circumstances, because of the principle that Courts do not ordinarily enforce specific performance of contracts of service [see Executive Committee of U.P. State Warehousing Corporation Ltd. V. Chandra Kiran Tyagi (1970) 2 S.C.R 250 : AIR 1970 SC 1244 : (1970) 1 SCJ 790 and Indian Airlines Corporation Vs. Sukhdeo Rai A.I.R. 1971 S.C. 1828). If the master rightfully ends the contract, ,there can be no complaint. If the master wrongfully ends the contract, then the servant can pursue a claim for damages. So even if the master wrongfully dismisses the servant in breach of the contract, the employment is effectively terminated. In Ridge v. Baldwin 1965) 1 WLR 79, Lord Reid said in his speech :

¶57

"The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he, must pay damages for breach of contract. So the question in a pure case of master and servant does n ot at all depend on whether the master has heard the servant in his own defence; it depends on whether the facts emerging at the trial prove breach of contract. 'But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its, servants, or the grounds on which it can dismiss them."

¶58

11. On a plain reading statute 151, it is clear that it only provides that the terms and conditions mentioned therein must be incorporated in the contract to be entered into between the college and the teacher concerned. It does not say that the terms and conditions have any legal force, until and unless they are embodied in an agreement. To put it in other words, the terms and conditions of service mentioned in Statute 151 have proprio vigore no force of law. They become terms and conditions of service only by virtue of their being incorporated in the contract. Without the contract, they have no vitality and can confer no legal rights.

¶59

12. Whereas in the case of Prabhakar Ramkrishna Jodh v. A.L. Pande and Another (1965) 2 SCR 713, the terms and conditions of service embodied in clause 8 (vi) (a) of the 'College Code' had the force of law apart from the contract and conferred rights on the appellant there, here the terms and conditions mentioned in Statute 151 have no efficacy, unless they are incorporated in a contract. Therefore, appellant cannot found a cause of action on any breach of the law but only on the breach of the contract. As already indicated, Statute 151 does not lay down any procedure for removal of a teacher to be incorporated in the contract; So, clause 5 of the

¶60

¶61

contract can, in no event, have even a statutory flavor and for its breach, the appellant's remedy lay elsewhere.

¶62

15. We hold that the High Court was right in its view that the writ petition was incompetent. We, therefore, dismiss the appeal but, in the circumstances, we make no order as to costs.”

¶63

22. A constitution Bench of Apex Court in Sirsi Municipality Vs. Cecelia Kom Francis Tellis reported in (1973) 1 SCC 409 please to hold that cases of dismissal of a servant fall under three broad heads. The first head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by a suit against wrongful dismissal and for claiming damages. Just as a contract of employment is not capable of specific performance similarliy breach of contract of employment is not capable of finding a declaratory judgement of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal services. Such a declaration is not permissible under the Law of Specific Relief. Relevant part of the judgment is quoted below:-

¶64

“In an ordinary relationship of master and servant governed by contract, a declaration of unlawful termination would indirectly amount to specific performance of contract of personal service not permissible under the law of Specific Relief Act.

¶65

The exception to the above are the cases of master and servants arising under industrial law, cases of servants in the employment of State of of other public or local authorities or bodies created statute if the dismissal is contrary to rules of natural justice or is in violation of the provisions of the statute.

¶66

Where a State or public authority dismisses an employee in violation of the mandatory procedural requirements or on grounds which are not sanctioned or supported by statute the courts may exercise jurisdiction to declare the act of dismissal to be a nullity. Such implication of public employment is thus distinguished from private employment in pure cases of master and servant.”

¶67

23. The Supreme Court in the case of Regi Kumar and others Vs. Director of Health Services, Kerala and others (2009) 16 SCC 385 held that fixed term appointment comes to an end after expiry of the tenure and

¶68

¶69

there would be no relationship of master and servant thereafter. Extract of paragraph 7 of the aforesaid judgement is reproduced below:-

¶70

“Even otherwise, when the appointment itself is for a fixed tenure, though the nature of the tenure is a temporary one, the appointment comes to an end after the expiry of the tenure and there would be no relationship of master and servant thereafter until the relationship is continued by a fresh letter of appointment, or by intervention of any court's order. We are told that when the appellants approached the High Court, the Court had not granted any interim order. By the time they approached the Court the term of one year had expired.”

¶71

24. Similar view was again taken by the Supreme Court in the case of State of M.P. and others Vs. Sandhya Tomar and another (2013) 11 SCC 357 . Paragraph Nos. 8 and 9 of the judgement are quoted below:-

¶72

“8. Initial appointment of respondent no.1 was not made on the basis of any advertisement in any newspaper whatsoever. Hence, applications for the post were not invited. It is a settled legal proposition that considering the candidature of persons by mere calling of names from the Employment Exchange does not meet the requirement of Articles 14 and 16 of the Constitution of India. (Vide: Excise Superintendent K.B.N. Visweshwara Rao, (1996) 6 SCC 216 : 1996 SCC (L & S) 1420, Veer Kunwar Singh Unversity Ad Hoc Teachers Association Vs. Bihar State University ( C.C.) Service Commission & Ors., (2009) 17 SCC 184 :2011) 1 SCC (L & S) 583; Union of India Vs. Pritilata Nanda, (2010) 11 SCC 674 : (2011) 1 scc ( L & S) 777 : AIR 2010 SC 2821; and State of Orissa Vs. Mamata Mohanty, (2011) 3 SCC 436: (2011) 2 SCC (L & S) 83). Thus, in view of the above, we are of the considered opinion that respondent no.1 was not appointed following the procedure mandatorily required by law, and that such appointment was admittedly in violation of Articles 14 and 16 of the Constitution of India, as several other eligible candidates have been deprived of their right to be considered for the post.

¶73

9. There can be no dispute with respect to the settled legal proposition that in the event that a person is not appointed on a regular basis, and if his service is not governed by any Statutory Rules, he shall be bound by the terms and conditions that have been incorporated in his appointment letter. (Vide : State of Punjab Vs. Surinder Kumar, (1992) S SCC 489 : 1992 SCC (L & S) 345 : (1992) 19 ATC 345 : AIR 1992 SC 1593). In such an eventuality, there can be no reason with respect to why the terms and conditions incorporated in the appointment letter should not be enforced against such an employee. In the instant case, respondent no.1 was temporarily appointed in a project and thus, she had at no point of time, been appointed on a regular basis, owing to which, she cannot claim any lien with respect to the said post.

¶74

¶75

25. In view of the discussion made hereinabove, this Court is of the opinion that since the employment of the petitioner was governed by a simple contract of employment, hence the writ petition is not maintainable for enforcement of contract of service.

¶76

26. In view of the same, no relief can be granted to the petitioner in extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. The writ petition is devoid of merits and the same is hereby dismissed. No order as to costs.

¶77

Order dated: 24.05.2019 saqlain

Mrs. Rupam Tewari v. Allahabad High Schools Society through Its Secretary, Allahabad and 2 Others

Case brief

What is this about?

What did the court decide?

Mrs. Rupam Tewari v. Allahabad High Schools Society through Its Secretary, Allahabad and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vijay Kumar and 5 Others Vs State of U.P. and Another

Madhu Pandey and 5 Others Vs State of U.P. and 4 Others

Manjula Rani Jauhar Vs State of U.P. and 2 Others

Neeraj Kumar Puthiya Vs State of U.P. and Another

Kashi Nath and 3 Others Vs Pashupati Nath

Lal Chandra and 9 Others Vs District Judge Bhadohi and 7 Others