Back
2012 Supreme(Pat) 1607
IN THE HIGH COURT OF PATNA
Mihir Kr. Jha, J.
Smt. Asha Shrivastava W/O Shri Dhananjay Prasad Shrivastava, R/o. Vill.
+P.O. & P.S.-Mirganj, Distt.-Gopalganj : Petitioner
vs.
The State of Bihar through Director, Secondary Education, Govt. of Bihar, Patna & Ors. : Respondents
CWJC No. 4953 of 2010
Decided On : 19.12.2012
For the Petitioner: Mr. Y.V. Giri.
For the State : AAG-1.
For the BPSC : Mr. Sanjay Pandey,
For the Resp, Nos, 5, 6 & 7 : Mr. Mahesh Narain Parbat.
The Act vests the power of appointment and dismissal in the Managing Committee of the minority school, with minimal interference from the State. Lack of approval from the State authority did not vitiate the dismissal decision. No writ would lie against the private respondents for seeking enforcement of the petitioner's personal right for restoration of her contract of service against the Managing Committee of a private minority school.
Headnote:
Dismissal - Service Conditions - Bihar Non-Government Secondary School (Taking over of Management and Control) Act, 1981 - Section 18(3)(c) & (d) - The petitioner, a Headmistress of a minority school, sought relief against her dismissal from service. The court examined the impugned order, the Act, and relevant case law. The court found that the Act vests the power of appointment and dismissal in the Managing Committee of the minority school, with minimal interference from the State. The court held that the lack of approval from the State authority did not vitiate the dismissal decision. The court also noted that the Act does not provide for prior approval for dismissal. The court dismissed the writ application, holding that no writ would lie against the private respondents for seeking enforcement of the petitioner's personal right for restoration of her contract of service against the Managing Committee of a private minority school.
Fact of the Case:
The petitioner, a Headmistress of a minority school, was dismissed from service. She challenged the dismissal, alleging violation of natural justice and fair play, non-compliance with service conditions, and mala fide intent. The respondent explained the misconduct allegations and the disciplinary proceedings against the petitioner.
Finding of the Court:
The court found that the Act vests the power of appointment and dismissal in the Managing Committee of the minority school, with minimal interference from the State. The lack of approval from the State authority did not vitiate the dismissal decision. The court dismissed the writ application, holding that no writ would lie against the private respondents for seeking enforcement of the petitioner's personal right for restoration of her contract of service against the Managing Committee of a private minority school.
Issues: The main issue was whether the dismissal of the petitioner from the post of Headmistress of the minority school was valid and whether the writ application was maintainable against the private respondents.
Ratio Decidendi: The court held that the Act vests the power of appointment and dismissal in the Managing Committee of the minority school, with minimal interference from the State. The lack of approval from the State authority did not vitiate the dismissal decision. The court dismissed the writ application, holding that no writ would lie against the private respondents for seeking enforcement of the petitioner's personal right for restoration of her contract of service against the Managing Committee of a private minority school.
Final Decision: The court dismissed the writ application, holding that no writ would lie against the private respondents for seeking enforcement of the petitioner's personal right for restoration of her contract of service against the Managing Committee of a private minority school.
Heard Mr. Y.V. Giri, learned Senior Counsel for the petitioner, learned AAG-1 for the State, Mr. Sanjay Pandey, learned counsel for the Bihar Public Service Commission and Mr. Mahesh Narain Parbat, learned counsel for the respondent nos. 5, 6 & 7.
2. In this writ application, the petitioner has prayed for the following relief:-
"1.(i) For quashing the dismissal letter no. 10/10 dt. 30.1.2010 (Annexure26) by which petitioner has been dismissed from service without having been taken in terms of the Service Conditions as mentioned in the byelaws of the Controlling Association Respondent No. 6 and as such the same is illegal, arbitrary and mala fide.
(ii) For issuance of a writ of mandamus Commanding Official respondents to take legal steps and prohibit the order of dismissal to be taken effect.
(iii) For giving a direction to not give approval of so-called dismissal of order passed by the respondent no. 63.
(iv) For giving a direction to reinstate the petitioner with immediate effect and to pay all her dues of suspension period including the subsistence allowance and payment of salary."
3. In order to appreciate the issue impugned in this writ application, it would be also useful to quote the impugned order passed against the petitioner dismissing her from service as contained in Annexure-26, which reads as follows:-
^^izs”kd %& lfpo 12&Mh] fQjkst’kkg ekxZ
ubZ fnYyh & 110001
nwjHkk”k % 23325644
lkgq tSu ckfydk mPp fo|ky;
ehjxat¼xksikyxat½
ia=kd 10@10 fnukad 30-1-2010
izsf”kr]
Jherh vk’kk JhokLro]
Ikz/kkuk/;kid ¼fuyfEcr½]
lkgw tSu ckfydk mPp fo|ky;]
ehjxat ¼xksikyxat½
fo”k;%& vkids fuyacu ds lac/k esA
izlax%& dkj.k i`PNk i=kad 112 fnukad 11-11-09 ds fu”iknu ds lac/k esA
egk’k;k]
mi;qZDr fo”k;d izlaxk/khu i`PNk i= vkidks fo|ky; ds vkns’kiky ds }kjk fnukad 14-11-09 dk Hkstk x;k Fkk ftls vkius ^^gkbZ dksVZ es dsl fd;k gS^^ dgrs gq, ysus ls badkj dj fn;kA blh i= dh ,d izfr LihM iksLV ls 12-11-09 dks Hkh vkidks Hkstk x;k ftlij Mkd foHkkx ls ^^eqykdkr ugh gksrk gS^^ dk fVIi.kh ds lkFk fnukad 23-11-09 dks okil dj fn;kA iqu% ;gh i= LihM iksLV ls fnukad 25-11-09 dks Hkh Hkstk x;k Fkk tks Mkd foHkkx }kjk ^^eqykdkr ugh gksrk gS^^ dh fVIi.kh ds lkFk 14-12-09 dks ykSVk fn;k x;kA blls ,slk izrhr gksrk gS fd vki i`PNk i= ysus ,oa mldk mRrj nsus ls cpuk pkgrh gS blds iwoZ Hkh vkius Li”Vhdj.k i=kad 39 fnukad 18-3-2009 ,oa ia=kd 64 fnukada 16-6-2009 dk Hkh vLi”V mRrj nsus rFkk VkyeVksy dh uhfr viukbZ Fkh] ftldh otg ls U;k;fgr es vkidks i`PNk i= fn;k x;k Fkk rkfd vki vius fgr es vko’;d larks”ktud dkjZokbZ
dj lds ftls ;asu&dsu izdksj.k vkius ysus ls cpus dk iz;kl fd;k gSA
fofnr gks fd vkids Åij /kks[kk/kM+h gsjkQsjh]Embezelment, vfHkys[kks dks xk;c djus lfgr yk[kks :i;ks ds xcu ,oa ljdkjh jkf’k ds nq:fofu;ksx dk ekeyk fl) ik;k x;k gSA
vr% mijof.kZr rF;ks ds vkyksd es bl izdj.k dk vafre fu”iknu djrs gq, rRdky izHkko ls vkidks lsokeqDr ¼c[kkZLr½ fd;k tkrk gS] rkfd vxzsrj fof/kd dkjZokbZ dh tk ldsA
fo’oklHkktu
gŒ@& vLi”V
¼lq/khu dqekj tSu½
lfpo^^
4. Mr. Giri, learned Senior Counsel for the petitioner, in support of the aforementioned prayer, has submitted that the petitioner was duly appointed as the Headmistress of Sahu Jain Balika Uchcha Vidyalaya, Mirganj (Gopalganj) (hereinafter to be referred to as "the school"). He has also clarified that when the school which has been declared as a minority school by the State Government and is receiving aid from the State Government, it has to be governed by the provisions of Bihar Non-Government Secondary School (Taking over of Management and Control) Act, 1981 (hereinafter to be referred to as the Act”). He has also referred to the pleadings to show that the petitioner was initially/ appointed as an Assistant Teacher of the School on 25.6.1973 and her services were approved and confirmed by the Bihar Secondary Education Board by an order of the Secretary of the Board dated 14.6.1980 with effect from 9.1.1978. According to Mr. Giri, the petitioner was later on appointed as Headmistress on 11.9.2002 and her
