Allowed

Alok Wilson v. Church of Christ Miss. of India and Ors.

Chhattisgarh HC24 Jun 2024WPS/5255/2009

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh held a writ petition maintainable against a grant-in-aid school regarding the termination of an Assistant Teacher. The court quashed the impugned order dated 22.07.2009, noting the school failed to obtain mandatory prior sanction as per Government Circular dated 12.07.1984 for staff transfer. The court distinguished non-teaching staff cases, affirming the school's pu

What did the court decide?

The impugned order dated 22-07-2009 passed by respondent No. 1 is quashed and the writ petition is allowed.

Alok Wilson Vs Church of Christ Miss. of India… — Education and Admissions | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR WPS No. 5255 of 2009

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Alok Wilson S/o Mr. C. Wilson, aged about 51 years, Asstt. Teach Ken Mamorial Christian Higher Secondary School Kududand, Bilaspur CG

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---- Petitioner

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Versus

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Church Of Christ Miss. Of India Education Department, Through- Mission Secretary, Kududand, Bilaspur, District Bilaspur (C.G.).

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M. Kujur (Secretary), Church of Christ Mission in India, Kududand, Bilaspur (C.G.).

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Shri A. Joseph, Principal, Ken Memorial Christian H. Sec. School, Kududand, Bilaspur(C.G.).

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---- Respondents

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(Cause Title taken from Case Information System)

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For Petitioner : Mr. Aman Pandey, Advocate holding brief of Mr. Afroz Khan, Advocate For Respondents : Mr. Saurabh Sahu, Advocate

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Hon’ble Mr. Justice Rakesh Mohan Pandey Order on Board

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25.06.2024

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1. The petitioner has preferred this petition challenging the order dated 22.07.2009 passed by the Secretary, Church of Christ Mission of India Education Department, Kududand, Bilaspur whereby the services of the petitioner were terminated from the post of Assistant Teacher with effect from 1^st of May, 2008.

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2. Facts of the case, in a nutshell, are that in pursuance of the order dated 29.07.1980 issued by District Education Officer, Bilaspur on 29.07.1980, respondent No. 1 was allowed to operate various Schools in the State of Chhattisgarh. Subsequently, Ken Memorial Christian Higher Secondary School, Kududand, Bilaspur came into existence. The petitioner was appointed in the said School to the post of Assistant Teacher on 25.02.1986. After that, vide order dated

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12.06.2008, the services of the petitioner were transferred to Ken Memorial English School, Badh Saraipali, District Bargarh (Orissa). Being aggrieved and dissatisfied with the said transfer order, the petitioner filed a writ petition bearing WPS No. 3167/2008 {Alok Wilson Vs. Church of Christ Mission of India Education Department & another} whereby the order of status quo with regard to placement of the petitioner was passed by this Court on 25.06.2008. Later on, the petition was allowed vide order dated 14.10.2008 at the option of the petitioner and the respondents were directed to allow him to join at his present place of posting. A notice was issued to the petitioner on 14.11.2008 by respondent No. 1 – Church of Christ Mission of India Education Department informing him that he remained absent from his duties from 05.11.2008. The petitioner replied to the said notice on 15.11.2008. Again a show-cause notice was issued to the petitioner on 19.11.2008 which was replied to on 26.08.2008. On 22.10.2008, the District Education Officer, Bilaspur directed respondent No. 1 to release the salary of the petitioner. A show cause notice was again issued to the petitioner on 06.02.2009 mentioning that since the petitioner remained absent from services from 01.05.2008, he was not entitled to receive salary. On 08.02.2009, the show cause notice was replied to by the petitioner.

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3. Learned counsel for the petitioner submitted that the petitioner remained absent from the services on account of certain medical urgency from 01.05.2008 to 15.06.2008. He further submitted that without affording any opportunity of hearing, the order dated 22.07.2009 (Annexure P/1) was passed by the Mission Secretary, Church of Christ Mission of India Education Department thereby terminating the services of the petitioner with effect from 1st May, 2008. He also submitted that the instant petition, as framed and filed against the Mission and the Principal of Ken Memorial School, Kududand, Bilaspur is maintainable as a similar

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issue has already been decided in WPS No. 7039 of 2009 and the same was affirmed by the Hon’ble Division Bench of this Court in Writ Appeal bearing W.A. No. 83 of 2024. He further argued that as per the Circular dated 12.07.1984, for transfer of Staff of a Non-Governmental Aided School, prior sanction of Superintendent of Divisional Education / District Education Officer is required. He also argued that the Church of Christ Mission of India Education Department receives grant-in-aid from the State Government, therefore, it would fall within the definition of ‘State’ under Article 12 of the Constitution of India, as such, the instant petition, as framed and filed, is maintainable.

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4. On the other hand, Mr. Sahu, learned counsel appearing for the respondents submitted that the petition is not maintainable, as the Ken Memorial School, Bilaspur is not a minority religious institution rather it is a non-aided school. He further submitted that the issue involved in this petition has already been resolved by the Hon’ble Supreme Court in the matter of St. Mary’s Education Society and Another Vs. Rajendra Prasad Bhargava and Others reported in 2023 (4) SCC 498. He also submitted that the petitioner was a temporary employee and as per the by-laws, the petitioner, who was a temporary employee, had to move an application for grant of leave but no such application was moved by the petitioner. He further argued that there are no pleadings concerning the date of appointment, the authority who appointed the petitioner and these facts have not been pleaded specifically in the petition. He also argued that the petitioner is not entitled to back wages, as there are no pleadings as to whether the petitioner was gainfully employed during this period or not. Thus, he submitted the petition deserves to be dismissed.

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5. I have heard learned counsel appearing for the parties and perused the material available on record.

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6. The admitted facts of the case are as follows:-

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(i). The Ken Memorial Church School is being run by the Church of Christ Mission of India.

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(ii) The Mission receives grant-in-aid from the State and this fact has not been disputed by the learned counsel appearing for the respondents.

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(iii) The petitioner was initially appointed on 25.02.1986 to the post of Assistant Teacher. The petitioner failed to produce his appointment order but from a perusal of the order of removal, it can be inferred that the order of appointment was issued by the Mission itself. Concerning the provident fund, no document has been placed by the petitioner in this petition. With regard to pension, no document has been placed by the petitioner in the present petition but from a perusal of the order impugned, it is apparent that the petitioner was removed from services with effect from 1st of May, 2008 and the order in this regard was issued on 22.07.2009.

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7. In the matter of Smt V. Walter & others V. Church of Christ Mission in India Education , the removal order was challenged by filing a writ petition bearing WPS No. 7039 of 2009 wherein objection concerning maintainability was raised, which was turned down and the petition was allowed in favour of the employee. Against which, the Writ Appeal bearing WA No. 83 of 2024 was filed by the Church of Christ Mission in India Education, wherein the Hon’ble Division Bench of this Court in paragraphs No. 9 & 10 held as under:-

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9. From perusal of the impugned order, it transpires that as per government circular dated 12.07.1984 for transfer of a staff of the non-governmental aided school, prior sanction of Superintendent of Divisional Education/District Education Officer is required. The appellants did not obtain any approval or sanction from the Superintendent of Divisional Education/District Education Officer which is required as per circular, therefore, the transfer order and termination order both are not in accordance with law.

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10 . The learned Single Judge has held that respondents No.3 and 4 therein

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had not obtained any prior approval or sanction from the Superintendent of Divisional Education/District Education Officer, thus, the transfer order is against the government circular. Learned Single Judge has also held that respondents No.3 and 4 therein have not acted as per the circular and passed the transfer order (Annexure P/4) without any approval of Superintendent of Divisional Education/District Education Officer and set aside the impugned order dated 16.12.2008 with all consequential benefits.

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8. From a perusal of the order passed by the Hon’ble Division Bench, it is depicted that a circular was issued by the Government on 12.07.1984, according to which for transfer of the staff of the non-governmental aided school, prior sanction of Superintendent of Divisional Education / District Education Officer is required.

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9. In the present case, there is no document to infer that the prior sanction of the Superintendent of Divisional Education / District Education Officer was obtained by respondent No. 1 before passing the order impugned (Annexure P/1).

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10. In the matter of St. Mary’s Education Society and Another (supra) the Hon’ble Supreme Court has held that “The right which purely originates from a private law cannot be enforced taking aid of the writ jurisdiction irrespective of the fact that such institution is discharging the public duties and/or public functions. The Scope of the mandamus is basically limited to an enforcement of the public duty.” Paragraphs 66 & 75.4 are reproduced herein below:-

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66. Merely because a writ petition can be maintained against the private individuals discharging the public duties and/or public functions, the same should not be entertained if the enforcement is sought to be secured under the realm of a private law. It would not be safe to say that the moment the private institution is amenable to writ jurisdiction then every dispute concerning the said private institution is amenable to writ jurisdiction. It largely depends upon the nature of the dispute and the enforcement of the right by an individual against such institution. The right which purely originates from a private law cannot be enforced taking aid of the writ jurisdiction irrespective of the fact that such institution is discharging the public duties and/or public functions. The scope of the mandamus is basically limited to an enforcement of the public duty and, therefore, it is an ardent duty of the court to find out whether the nature of the duty comes within the peripheral of the public duty. There must be a public law element in any action.

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75.4 . Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a nonteaching 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. In any case, the terms of employment of contract between a school and nonteaching 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 nonteaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered 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.

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11. Now coming to the facts of the present case in light of the judgment referred to above, the petitioner was not an employee of non-teaching staff rather he was appointed as Assistant Teacher. Respondent No. 1 receives grant-in-aid from the State and undisputedly, the order of the removal was issued by the Secretary of respondent No. 1. The Ken Memorial School is still imparting education as unaided School, which is a public duty within the expanded expression of the term. Further, no opportunity of hearing was afforded to the petitioner before passing the order impugned (Annexure P/1). As per circular dated 12.07.1984, no permission was obtained from the District Education Officer by respondent No. 1. In case of St. Marry Education (supra), the Hon’ble Supreme Court in paragraph 66 has held that “the right which purely originates from a private law cannot be enforced taking aid of the writ jurisdiction whereas in paragraph 75.4 it is held that the petition filed by a non-teaching staff would not be maintainable as they are not performing the public duty.

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12. There are some orders issued by the District Education Officer in favour of the petitioner. An order dated 22/23.10.2008 was issued by the District Education Officer directing the respondents to release the salary thereafter; another order was issued by the same authority directing the respondents to deposit the contribution in

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the provident fund account of the petitioner. This strengthens the contention made by learned counsel for the petitioner.

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13. Since the petitioner has not pleaded anything about gainful employment therefore, the issue of back wages shall be decided by respondent No. 1 after verifying the fact that whether the petitioner was gainfully employed anywhere. If it is found that the petitioner was not gainfully employed anywhere, he shall be entitled to receive the entire back wages from the date of removal to the date of his retirement, irrespective of the fact that such institution is discharging the public duties and/or public functions. The Scope of the mandamus is basically limited to the enforcement of the public duty.

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14. Taking into consideration the above-stated facts and the law laid down by the Hon’ble Supreme Court in afore-cited cases, in the opinion of this Court, the impugned order dated 22-07-2009 passed by respondent No. 1 is liable to be and is hereby quashed.

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15. Consequently, the writ petition is allowed .

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Sd/-

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(Rakesh Mohan Pandey) Judge

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amita

Alok Wilson v. Church of Christ Miss. of India and Ors.

Case brief

What is this about?

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Alok Wilson v. Church of Christ Miss. of India and Ors.

Case brief

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