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2015 Supreme(Gau) 1156
GAUHATI HIGH COURT
A.K. Goswami, Ujjal Bhuyan, K. Shreedhar Rao, JJ.
Abdul Gofur Mondal - Appellant
Versus
State of Assam & Ors. - Respondent
WP(C) No. 4612 of 2011
Decided On : 19-03-2015
Mr. M.U. Mondal, Mr. H.R.Ahmed, Mr. M. Hussain and Mr. M.R. Khandakar for the petitioner.
Mr. A.C. Buragohain, Mr. S. Sarma, Mr. AFNU Mollah, Mr. R. Islam and Mr. J. Rahman for the respondents.
Headnote:
Constitution of India, 1950 - Article 39(d) , 12 and 226 – Indian Penal Code, 1860 - Section 302/34 - Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 - Section 2(s) - Factories Act - Industrial Disputes Act - Minimum Wages Act - Air (Prevention and Control of Pollution) Act, 1981 - Water (Prevention and Control of Pollution) Act, 1974 - Assam Non-Government Educational Institutions (Regulation and Management) Act, 2006 - Section 15(2) and 2(g) - Right of Children to Free and Compulsory Education Act, 2009 – Section 18 , 23 , 23(3) , 38 , 38(2)(1) and 39(d) – Employment and Service matter - Order of seniority - Provincialosatin of his services - Filed for preparation of gradation list - Petitioner should be treated as First Assistant Teacher and respondent Nos. 8 and 9 as Second and Third Assistant Teacher, respectively in order of seniority - School received financial assistance for period and Managing Committee was constituted and approved by Block Elementary Education Officer - Writ petition was filed, primarily praying for a writ of mandamus directing respondent authorities to prepare a gradation list and to treat writ petitioner as First Assistant Teacher of school in order of seniority amongst Assistant Teachers and also for provincialosatin of his services - Held, it becomes evident that though a non-government educational institution is purely a private institution it is statutorily regulated - Being a purely private body, judicial intervention in exercise of the power of judicial review may not be available in the internal matters of the institution, such as disputes relating to appointment seniority or decisions of the Managing Committee, etc - It is difficult nay impossible to catalogue situations where writ remedy may be available - Apex Court had observed that disputes between management and staff of educational institutions must be decided speedily and without excessive incurring of costs and accordingly considered it appropriate that an Educational Tribunal be set up in each district in a Stale to enable aggrieved teacher to file an appeal against decision of management concerning disciplinary action or termination of service - During course of hearing, Court were informed by learned Advocate General that till date no Educational Tribunal is established in State - Court issue a writ of mandamus to the Stale Government to established Educational Tribunals at districts to adjudicate disputes relating to teaching and non-teaching staff of non-government educational institutions as well as disputes concerning disciplinary action and claim for provincialisation in respect of teaching and non-teaching staff of venture educational institutions - Till establishment of the Tribunals – Order accordingly.
1. Three writ applications, under article 226 of the Constitution of India, were filed by one Abdul Gafur Mondal and the applications were registered as WP(C) No. 4612/2011, WP(C) No. 6109/2012 and WP(C) No. 2272/2013.
2. The writ petitions have been placed before the Full Bench to consider the following question of law:
“Whether a writ petition is maintainable against a purely privately managed institution, such as, venture school contemplated in section 2(s) of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011?
3. It will be necessary, at the outset, to outline only the basic factual matrix of the aforesaid three writ petitions for the purpose of understanding how the question had arisen for consideration of the Full Bench.
4. The case set out in WP(C) No. 4612/2011 is that the petitioner is the founder Assistant Teacher of a school, namely, Janakalyan Venture Lower Primary (VLP) School, established on 1.1.1987, and he was working in the said school till the filing of the writ petition with full satisfaction of all concerned. Respondent Nos. 8 and 9 were appointed as Assistant Teacher in the said school on 10.3.2008 and 10.3.2010, respectively. Thus, the petitioner should be treated as the First Assistant Teacher and the respondent Nos. 8 and 9 as the Second and Third Assistant Teacher, respectively, in order of seniority. The school received financial assistance for the period 2010-11 and the Managing Committee was constituted and approved by the Block Elementary Education Officer, Bilasipara. The writ petition was filed, primarily, praying for a writ of mandamus directing the respondent authorities to prepare a gradation list and to treat the writ petitioner as the First Assistant Teacher of the school in order of seniority amongst the Assistant Teachers and also for provincial satin of his services.
(ii) Respondent Nos. 6 and 7, i.e., Secretary-cum-Headmaster, and the President of the Managing Committee of the Janakalyan VLP School, respectively, had filed affidavit, wherein it was stated that though the school was established with effect from 1.1.1987, there was no Assistant Teacher in the school till 1991. Thereafter, by a Resolution dated 30.7.1992, the School Managing Committee appointed one Jahura Khatun as the First Assistant Teacher, but she was removed by the School Managing Committee by a Resolution dated 2.6.1999 due to her irregular attendance. Thereafter, by a Resolution dated 1.7.1999, the School Managing Committee decided to appoint the present petitioner as Assistant Teacher in place of Jahura Khatun and, thus, the petitioner came to be appointed and he had been working as Assistant Teacher till, 4.6.2008 without having any formal appointment and without submitting any joining report to that effect. The petitioner was not regular in attending school and, therefore, the School Managing Committee had adopted a Resolution, dated 2.5.2001, asking him to be regular in attendance. Subsequently, show-cause notice had been issued to the petitioner, but there was no improvement in his attendance and, therefore, the School Managing Committee adopted a Resolution, being Resolution No. 1, dated 5.6.2008, whereby the petitioner was terminated/ dismissed from service. After termination of the petitioner, respondent No. 8 was appointed as Assistant Teacher on 20.6.2008 and he had been serving in that capacity since his date of joining on 23.6.2008. The names of the respondent Nos. 6 and 8 had figured as Head Teacher and Assistant Teacher in the District Information System for Education (for short, 'DISE') Code for the years 2010-11, 2011-12 and 2012-13 and forms had been filled up for provincialisation of their services in terms of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 ('the Act of 2011'). (iii) The respondent No. 8 had taken the same stand as respondent Nos. 6 and 7.
5. WP(C) No. 6109/2012 was filed asserting that in various Inspec
