Writ Petition Against Unaided Schools: Maintainability

sona misti (Querist) 11 April 2020 This query is : Resolved
does the maintability of a writ petition stands against a recognised unaided school regarding termination from job on the ground that my ex husband filed rti to that school & school answered & court ordered them to supply attendence register xerox.for that they show caused me & want to terminate me as they dont have any papers related to my personsl issue & are dragged in these. now plz enlight me .

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KISHAN DUTT KALASKAR (Expert) 11 April 2020
Yes maintainable. Please see the following judgment of SC
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Writ Petition Challenging Dismissal Of Teacher Maintainable Against Private Unaided School : SC
The Supreme Court has held that a writ petition challenging the termination of services of a teacher is maintainable against a private unaided educational institution.
The bench of Justices Arun Mishra and Navin Sinha held so while dismissing an appeal by Marwari Balika Vidyalaya, a private school, against a Calcutta High Court judgment, which had directed the reinstatement of a dismissed teacher named Asha Srivastava with back wages by invoking writ jurisdiction under Article 226 of the Constitution of India.
She was dismissed on grounds of 'indiscipline' after she had filed a writ petition in High Court seeking expeditious action on the approval of her appointment.
The prime contention raised by the school was that powers under Article 226 of the Constitution of India could not have been invoked against a private entity.
While dismissing the appeal, the bench referred to the SC decision in Raj Kumar vs Director of Education and others, which had held that approval of the government education authorities was necessary even for dismissal of a private school employee. No such approval was obtained by the school in the instant case before retrenching the teacher.
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Prior approval of Govt. necessary before retrenching Private School Employees: SC upholds validity of Section 8(2) of Delhi School Education Act [Read Judgment]
The bench also referred to the decision in Ramesh Ahluwalia vs State of Punjab, which had held that the employee of a private school can file writ petition in relation to service disputes. According to Ramesh Ahluwalia decision, a school is discharging a 'public function' and hence writ was maintainable against it.
"It is apparent from the aforesaid decisions that the Writ Application is maintainable in such a matter even as against the private unaided educational institutions", observed the bench in the order passed on February 14.
The appellant school had placed reliance on the SC decision in Committee of Management, Delhi Public School & Anr. v. M.K. Gandhi & Ors (2015) 17 SCC 353 which had dismissed a writ filed by a teacher seeking reinstatement as non-maintainable. However, that decision was distinguished by holding that question of prior approval by government authorities for dismissing a teacher was not involved there.
The decision Satimbla Sharma & Ors. v. St. Paul's Senior Secondary School & Ors referred by the appellant was a case demanding equal pay for private school teachers at par with government teachers. The SC had dismissed that claim holding that equality under Article 14 cannot be raised against a private entity. The next precedent relied by the appellant - Sushmita Basu v Ballgunge Siksha Samity- was a case for equal payment of dearness allowance to private school teachers as given to government school teachers. The SC had rejected that claim observing that writ against a private body cannot be claimed if there is no public law element involved.
The bench distinguished these cases holding that the facts were different.
"In view of the aforesaid discussion, we have no hesitation to hold that the Writ Application is maintainable as rightly held by the Division Bench of the High Court", the Bench said.
It added that the direction to pay back wages was reasonable as the teacher was made to suffer a stigmatic order.
Contrary view taken by Kerala High Court
On February 28, the Division Bench of High Court of Kerala had answered a reference to hold that writ petition was not maintainable against a private school in relation to service matters of employees.
The bench of Justices V Chitambaresh and Narayana Pisharadai overruled two single bench decisions - Bincy Raj vs CBSE & Chitra v State of Kerala- which had held that the writ court can review disciplinary action against a CBSE teacher. These decisions had held writ to be maintainable on the ground that education amounted to discharge of a public function.

Rajendra K Goyal (Expert) 11 April 2020
Repeated query, already replied at:
https://www.lawyersclubindia.com/experts/Writ-petition-against-recognised-unaided-school-maintability-718111.asp

Repeated also at:
https://www.lawyersclubindia.com/experts/Writ-petition-against-recognised-unaided-school-maintability-718106.asp

Raj Kumar Makkad (Expert) 11 April 2020
Two times repetition of the same query do not give any sense.

P. Venu (Expert) 12 April 2020

Had the show cause cited the reason of the RTI application filed by your husband? If so, what was the reply, if any, you had furnished? What has been the subsequent course of action, if any, taken? Has the termination letter been issued? Does it mention any reason?

sona misti (Querist) 16 April 2020
my school principal show caused me on 18.03.2020 & asked for reply within 7 days as my ex had rti them 4 times regarding mine & other teachers sallry & other particulars & i didnot disclose my personal papers to them & now court told them to submit attendence register from my permanancy & verbally told not to come from next day.(when principal gave answer to rti he never asked my opinion or case).next day i went for my invigilation duty of class11 exam as board circular was there that every teacher had to be present.he didnot let me sign the register & did not gave me any written order.then i wrote about it and received it from clerk & came back.i went to school to submit my showcause reply on 23.03.2020 but clerk said school is closed & then i went to post through speedpost but due to lockdown the service was postponed.then i booked through courier but it didnot reach as school was closed.now school started online class but they didnot include my name.i whatsapp my prinicipal sir but he didnot respond. i apporached some society cum m.c member (our school is run by M.C) but they told until 10th june no communication.( in our state school is closed upto 10th june).
1. can i be sacked without proper enquiry or process being a permanant teacher & my name goes to wb hs council for renewal/permission of a subject.
2.can i be sacked for not disclosing my matrimonial issue papers to them?or because ex husband filed rti & court told them to submit attendence register.
3.if they donot give me any written termination/ suspend order further what will be my due course of action?.
4.my appoint ment letter told on displinary ground i can be terminated prior 3 months notice. is it my displinary fault?or can they stop my sallary after 3 months?
5.if i donot/do get termination/ suspend order can i file writ petition ? how much time is will take if it is maintaiable?
6.how can i proceed next?
7.can they add up any other issue with it to terminate/suspend me.

Rajendra K Goyal (Expert) 16 April 2020
You have repeated your above post in all your three queries. There is no reason to repeat. The fact was pointed out previously also. Your above post has been duly replied at:

https://www.lawyersclubindia.com/experts/Writ-petition-against-recognised-unaided-school-maintability-718106.asp

You can read reply given on above referred query for your following repeated query also:

https://www.lawyersclubindia.com/experts/Writ-petition-against-recognised-unaided-school-maintability-718111.asp

P. Venu (Expert) 16 April 2020
The facts posted are less than convincing. The school, admittedly, is a private unaided school which not a public authority and hence do not come under the purview of the RTI Act. As such, it is intriguing how your ex-husband could have filed an RTI application and sought information.

It is equally intriguing that some court has given some direction or decision. No court other than High Court or the Supreme Court entertains any petition on RTI matter, that too, after the stage of second appeal.

In short, the facts you have posted are incomplete and convoluted. It is impossible to offer any meaningful suggestion unless you post complete facts in simple language avoiding all presumptions, assumptions and subjective opinions.

Raj Kumar Makkad (Expert) 16 April 2020
RTI application is duly maintainable even against unaided private educational institution but not directly rather through its controlling authority like District Education Officer.

Raj Kumar Makkad (Expert) 16 April 2020
C.W.P. No. 2626 of 2008 Punjab & Haryana High Court Chandigarh

JUDGES
Mr. Justice M.M. Kumar

Mr. Justice T.P.S. Mann

ACTS
Section 2(h)(d) of the Right to Information Act, 2005 (for brevity the Act).

MISS. RAVNEET KAUR VS. THE CHRISTIAN MEDICAL COLLEGE AND ANR.
Punjab & Haryana High Court, 06 May 1997
D.A.V.College Trust And Management Society v. Director Of Public Instruction
Punjab & Haryana High Court (25 Feb, 2008)
Subsequent
References Similar
Judgments
D.A.V.COLLEGE TRUST AND MANAGEMENT SOCIETY V. DIRECTOR OF PUBLIC INSTRUCTION
Important Paras

D.A.V.COLLEGE TRUST AND MANAGEMENT SOCIETY V. DIRECTOR OF PUBLIC INSTRUCTION
Judgement

M. M. KUMAR, J. :- The short issue raised in this petition is as to whether the D. A. V. College, Sector 10, Chandigarh could be regarded as public authority within the meaning of Section 2(h)(d) of the Right to Information Act, 2005 (for brevity the Act).

2. There are colleges with the name of D.A.V. College, Sector 10, Chandigarh, M. C. M. D. A. V. College, Sector 36, Chandigarh and a school with the name of D. A. V. Senior Secondary School, Sector 8, Chandigarh. These institutions are established by the society and are admittedly getting financial aid to the extent of 95% from the Union Territory, Chandigarh. It is claimed that grant-in-aid was initially to the extent of 95% which has come down to 45%. The grievance aired by the petitioner is that the Director of Public Instructions, U. T. Chandigarh has initiated proceedings against the petitioners under the Act whereas the petitioners do not fall within the expression public authority as used in Section 2(h) (d) of the Act. It is claimed that the petitioners cannot be considered to have been receiving substantial financial aid from the government or government resources. In respect of petitioner No. 4 i.e. D. A. V. Senior Secondary School, Sector 8, Chandigarh, respondent No. 2 vide order dated 10-10-2001 /3-12-2007 (Annexure P/ 1) has already expressed its opinion that it is a public authority within the meaning of Section 2(h)(d) of the Act. Members of the public had sought information from the petitioners by moving applications to the Public Information Officer. On 25-9-2007 (Annexure P.2), one Arun Aggarwal, respondent No. 5 has sought information regarding annual fee structure for various Classes/ Programmes/Diplomas/Certificate courses/ Add-on courses offered by the D. A. V. College, Sector 10, Chandigarh along with many other informations. Likewise, on 26-9-2007 (Annexure P.3), one Shri Avanindra Chopra, respondent No. 6, has requested for supply of information concerning advertisement/ to notices issued by the D. A. V. College, Sector 10, Chandigarh in respect of college admissions for the session 2007-08. One Sat Pal Kharwal, respondent No. 7 on 26-2-2007 (Annexure P. 4) had also requested for supply of some information. However, the petitioners, in their reply sent to respondent No. 5 has taken the stand that the Act does not apply to their institution as it is not a public authority. Respondent No. 1 on 10-9-2007 advised the petitioner to comply with the provisions of the Act as the petitioner is getting 95% grant-in-aid from the Chandigarh Administration. The view of respondent No. 1 is expressed in the following terms :1

"In view of the above provisions, it is clear that the DAV College, Chandigarh being an Aided College getting 95% grant-in-aid from the Chandigarh Administration is controlled and substantially financed by the Government and as such the college authorities are bound to comply with the provisions of the Act.

We operate in an era of transparency and accountability and it is expected that all our decision must stand the test of public scrutiny. Issues relating to annual fee structure for various courses, leave encashment, contributory provided fund deductions etc. are not covered by the provisions of Section 8 of the Act which provides exemption from disclosure of information.

Even otherwise, the annual fee structure, being an integral part of the Prospectus, is open to all and it would be improper to withhold information on the same."

3. Similar directions have been issued by the Central Public Information Officer, office of respondent No. 1 to the petitioners for furnishing information to respondent Nos. 5, 6 and 7 (Annexures P. 8 to P. 10).

4. We have heard the learned counsel at a considerable length and find that the petitioners are covered by the expression public authority as used by Section 2(h)(d) of the Act. The afore-mentioned provision is reproduced hereunder for facility of reference :

"2. Definitions. In this Act, unless, the context otherwise requires,-

xx xx xx xx xx xx

(h) "public authority" means any authority or body or institutions of self-government established or constituted.-

(a) to (c) xx xx xx xx

(d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed;

(ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government."

5. A perusal of the definition of public authority shows that public authority would mean any authority or body or institution established or constituted apart from other things by the notification issued by an order made by the appropriate Government. It is to include even any body owned, controlled or substantially financed or non Government Organisation substantially financed directly or indirectly by the funds provided by the appropriate Government. It is undisputed that the petitioners are receiving substantially grant-in-aid from the Chandigarh Administration. Once a body is substantially financed by the Government, the functions of such body partake the character of public authority. The definition of expression public authority itself shows that public authority would include any organisation/body owned, controlled or substantially financed directly or indirectly by funds provided by the Government or even the non-government organisation which is substantially financed. The petitioner has claimed that they are getting only 45% grant-in-aid after admitting that initially the grant-in-aid paid to them was to the extent of 95%. If on account of policy of the Government the grant-in-aid to the extent of 95% which was given initially allowing the petitioner to build up its own infrastructure and reducing the grant-in-aid later would not result into an argument that no substantial grant-in-aid is received and therefore it could not be regarded as public authority. Therefore, we do not find any substance in the stance taken by the petitioner that it is not a public authority.
6. There is another aspect of the matter. In another context, a Five-Judges Full Bench of this Court in the case of Ravneet Kaur v. The Christian Medical College, Ludhiana, AIR 1998 Punjab and Haryana 1 has considered the question as to whether the functions discharged by a private body like Dayanand Medical College, Ludhiana or Christian Medical College, Ludhiana are public functions or private functions. The Full Bench has taken a view that since the institutions discharge public functions, it cannot be regarded as a private individual limiting the powers of the Court in issuance of directions including prerogative writs. It has further been held that imparting of education is a public function irrespective of any financial aid. Once the institutions like the petitioners are performing public functions affecting the life of a huge segment of the society and in addition are receiving substantial grant-in-aid then it cannot be argued that it is not a public authority. Therefore, for the additional reason, detailed in Ravneet Kaurs case (supra), the writ petition would not survive and the question posed has to be answered against the petitioners.
7. No other argument has been advanced.

8. For the reasons aforementioned this petition fails and the same is dismissed.

Petition dismissed..

Raj Kumar Makkad (Expert) 16 April 2020
You cannot be removed directly without following the discplinary procedure so you have every right to file writ petition before high court even though the school is unaided private. as pera recent judgment delivered by Hon'ble Apex Court of India on 07 June, 2019 in a similar case.

P. Venu (Expert) 17 April 2020
Learned Expert Mr. Raj Kumar Makkad: The suggestion made is only a possibility, need not be the true state of affairs. It may be that that the author is harbouring wrong notions based on misconceptions or that she has not posted the complete facts. Necessarily, this could be ascertained only when she comes forth with the facts, as sought.

sona misti (Querist) 17 April 2020
@sir p.venu what information you are asking about? kindly clarify me.should i write the details of show cause letter? or the cases going on with my ex husband?

Rajendra K Goyal (Expert) 17 April 2020
As mentioned and advised earlier, procedure (disciplinary proceeding procedure)has to be followed before removal / suspension / termination.

The writ petition can be filed against private school, it seems the condition is not warranted at this stage. Discuss in detail with your lawyer.

P. Venu (Expert) 17 April 2020
I am sorry that there were some spelling errors in the first paragraph of my earlier posting; it may be read as follows:

"The facts posted are less than convincing. The school, admittedly, is a private unaided school which not a public authority and hence do not come under the purview of the RTI Act. As such, it is intriguing how your ex-husband could have filed an RTI application and sought information."

You are once again requested to provide the following information:-

RTI Act is applicable only in respect of public authorities i.e. Government Institutions. Then how is it that your ex- had sought the RTI information from a private unaided school?

You have mentioned of court direction. Is it related to RTI information or some other ASPECT.

You may furnish, at your discretion, the particulars of the cases, if any, going on against your husband.

You may post the show cause notice, verbatim, if it is convenient.

sona misti (Querist) 17 April 2020
i had filed maintenance case on 10.04.2015 before joinning the school on purely temporary basis for one year with 8k.ex husband did rti in 2016 & submitted that in court.my cross was completed in jan2018. my father & his cross was completed in june 2018.after completion of all cross during argument stage i was confirmed on 01.08.2018 & verdict was given in my favour on 12.10.2018.then he moved to upper court & sought rti again & principal without telling me sent all the documents.upper court remanded it but opined that as he did not produce his pay slip & status should be considered and told until he has to pay the same.the case didnot reopened.now when principal gave me a showcause letter on18.03.2020 where he told they sent school 3 rti & letters & they told me (verbally) to hand over my personal papers.& school doesnot know anything about my personal judicial matter & principal has to present school with documents & attached a order copy saying my ex had filed a case in the same court & court ordered before making a case an enquiry should be done & a competent staff should present with attendence xerox from my permanancy date.then i searched case sratus online and found he filled case on supression of facts and it is in admissable stage.my advocate told he also lied about his sallry, his promotion and others ,i can also file same.
i told sir u didnot informed me about all those rti now why showcause? he didnot answer.
next i heard now they will give me 3 months sallry & throw me out as my answer didnot received within7 days.( despite school closed, post closed due to lockdown, i did courier as email adress is not that known).i whatsapp principal sir regarding class he didnot answer.plz help me.

sona misti (Querist) 17 April 2020
if they stop my sallry after 3 months or sack me & if i file writ petition then,approx time limit for disposal/ reinstment of it? how much cost? some teachers are saying they have money they will go to supreme court & can have any advocate. i donot have that much money.i am worried about it.plz guide.

T. Kalaiselvan, Advocate (Expert) 17 April 2020
Firstly you stop believing the rumours by others in this regard.
If you file a writ petition for a relief, you make sure that the advocate you engaged is prudent and skilled and practicing in the same filed for better results.
The writ petitions are generally disposed within two to three hearings.
Let them go to supreme court also, you may concentrate on what you are required to do instead of getting scared by the words of discouraging people around you.
If you keep hesitating on several issues then you will be the sufferer.

P. Venu (Expert) 18 April 2020
The facts posted suggest that there was no RTI application, but the trial court as well the appellate court had sought production of her salary particulars in the maintenance case she had filed against her ex-husband. The school authorities had produced the documents, as directed.

However, it could be gleaned from the author's last posting that these developments had led the school authorities to discover that she had suppressed some information (may be, as to her marital status) while seeking appointment in the school.

As I could understand from the author's posting (it is really surprising that, though a teacher in Higher Secondary Classes, the postings lack clarity and at times, the language is highly convoluted) the matter is still at the Show Cause stage and she needs to submit her reply/explanation. Subsequently, the school authorities are required to conduct the departmental proceedings, unless she accepts the charges and pleads guilty.

Anyhow, it is unwise to rush to the High Court or any other court of law. It would be nothing but waste of her hard earned resources.

sona misti (Querist) 18 April 2020
@ sir p.venu ,they very well knew about my matrimonial dispute.in 2016 my husband sent rti for seeking information and they did again sent rti application 3 times in june 19,sept.19 and the last one with court order on 3rd march2020.
no supression of facts with school.
school principal told as he was called to court for submitting attendence register & ex husband is disturbing them with rti..thats why they want to sack me.( as per them because of me other teachers are getting entangled in it due to attendence register & rti regarding their sallry, IT returns).as it is pvt school why they will take this extra burden.
i am worried because from jan,2020 to today two temporary teacher one being vice principal lost their job.another permanant teacher of secondary section was punished with primary section duty & he took medical leave from 6th jan and authority stopped his sallary from that month, but no written suspension/termination letter.

P. Venu (Expert) 18 April 2020
You are yet to disclose the contents of the show cause notice.

sona misti (Querist) 18 April 2020
notice :on these & that dates rti notice came.i were told to hand over my personal papers.i failed to do that.so as per their knowledge they gave answers not knowing my personal judicial matters.due to unsatisfatory answers a letter came with notice...GR case(where as in order copy it written MC case)& unfortunately principal has to go to court with papers.so answer within 7 days or drastic step.(attached the order copy where it told attendence register xerox with an competent staff to be present).& he verbally told me am free from all duty & not to come until answer.

Raj Kumar Makkad (Expert) 18 April 2020
Why are you posting the facts of your query in installments? Why the relevant facts be posted at one go? You have entirely changed your facts making our earlier replies as infructuous and not practical.

Raj Kumar Makkad (Expert) 18 April 2020
Ma'm! You are still in service and have not been dismissed as on day. You are required to submit reply to the show cause notice issued to you on 12/03/2020 which you could not do due to lockdown. The Hon'ble Supreme court in a PIL has already extended the limit of all matters/cases in respect of whose limitation has to expire during the lockdown period so do not worry and wait for the opening and submit your reply immediately thereafter.

Raj Kumar Makkad (Expert) 18 April 2020
Expert P. Venu! Kindly go through the judgment of Hon'ble Supreme Court of India as posted above which clearly holds that a teacher of a private unaided educational institution can file a writ against his illegal dismissal. In that judgment, it has been held that unaided schools do perform the duty of the state hence they are equal to State for this short issue. A writ is maintainable though the same is not a mature stage for the author as on day.

sona misti (Querist) 18 April 2020
sir i received the showcause on 18.03.2020 & i went to submit my reply on 23.03.2020.school was closed, postal service for speedpost/reg post were suspended.i booked through courier.but it didnot reach due to lockdown.should i again post it through postal service on 20/30 april when partial lockdown will be lifted & if postal service start again.or i have to wait for 10th june for opening of school.in the meantime school is conducting online class & mine name is not included.( some teachers are saying they will give me 3 months sallary & then stop as reply letter didnot reach & they will throw me out anyway).

Raj Kumar Makkad (Expert) 18 April 2020
As already advised to you, still you are in service and no writ is maintainable at this stage. You are required to file your reply to show-cause notice and wait for the outcome of said correspondance. May management not dismiss you then what shall you do?

You get cause of action to file the writ only after formal dismissal.

Rajendra K Goyal (Expert) 19 April 2020
If the school / Principal / authority signed the Show cause notice is having e-mail forward the reply through e-mail, also through WhatsApp. Mention the fact of lockdown due to which hard copy could not be sent and would be sent after lockdown.

Again advice, refuse any fault, however facts be mentioned in limited words.

sona misti (Querist) 19 April 2020
our school doesnot use email adress in pad/diary & no website.so the adress is not known to me.i messaged principal sir regarding onl9class in whatsapp but he didnot replied.he could have asked me for letter.show cause means no duty?

Rajendra K Goyal (Expert) 19 April 2020
You have sent the reply through whats App, note to send hard copy after lockdown through Registered post, mention the fact of sending by Whats App with date and time on hard copy sent and your copy for record.

Download the record of delivery of the letter from Post Office site (Track your consignment).

sona misti (Querist) 19 April 2020
i had already sent one letter on 19.03.2020 through speedpost(regarding non signing register), tracker showing closed on 20,21.on 23rd answer letter i booked through courier (postal service suspended) couldnot reach cause of lockdown.in whatsapp i didnot sent answer letter..i requested about duty.how i send the answer letter through whatsapp ..its big & signature?i

Writ petition against recognised unaided school maintability

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