1. Petitioner was serving as Head Teacher in Bawa Amerjeet Kaur Memorial School, Sham Sherpur Paonta Sahib, District Sirmaur, since 1993. The school was having recognition and affiliation with H.P. Board of School Education. In present petition, she has assailed her termination and relieving vide notice dated 30.04.2011 (Annexure P-5) whereby she was removed from service for the reasons that she was untrained teacher and was not having requisite minimum qualifications as per norms. As per petitioner, she was removed illegally by respondent No. 4 under the garb of enactment of norms providing minimum qualification under ''The Right of Children to Free and Compulsory Education Act, 2009 (here-in-after referred as ''Act, 2009''.)
2. It is submitted on behalf of petitioner that under ''The Right of Children to Free and Compulsory Education Act, 2009", minimum qualification for the post of which she was working has been prescribed as Bachelor of Education and respondent No. 4 under the garb of Enactment prescribing minimum qualification for teacher under the Act, 2009 had removed and relieved her from service vide impugned notice dated 30.04.2011 (Annexure P-5), whereas, she was entitled for 5 years lean period from the commencement of the Act, 2009 for acquiring minimum qualification prescribed as per norms.
3. Respondent-State has filed reply to the petition stating that respondent No. 1 has no role to play regarding the appointment of petitioner as appointment and control of teacher of such schools is with the School Management. However, it is stated that under the Act 2009, Private Schools are given recognition w.e.f. 2011-12 session and after that their recognition is renewed every year by the concerned Deputy Director of Elementary Education at District Level.
4. Mr. Nimish Gupta, Advocate is representing respondent No.3 Principal of the School and also respondent No. 4 Management Committee of the School. However, reply of respondent No. 3 only, has been preferred defending the action of respondent No. 4 stating therein that on 06.03.2011, in a meeting of Management Committee, it was decided to remove those teachers who were not having requisite minimum qualification as per norms and replace them with trained teachers and thereafter in the next meeting held on 20.04.2011, such teachers were served with notice and relieved by paying one month''s salary in advance. Copies of the proceedings of the meeting have also been placed on record as Annexure A-1 and Annexure A-2 with the reply. It is contended on behalf of respondent No. 4 that respondent No. 4 is a Private and un-aided school being managed by Society and is not an instrumentality of State and therefore, relief claimed by petitioner cannot be granted in present petition being not maintainable. Appointment of petitioner as Head Teacher since, 1993 and her removal for want of requisite minimum qualification is not disputed in the reply. Action of the Management has been claimed in consonance with the Rules and Regulations of the Board. However, no such Rules and Regulations have been placed on record. The petitioner has placed on record the Right of Children to Free and Compulsory Education, Himachal Pradesh Rules, 2011 (in short HP Rules 2011) Rule 14 of the said Rules provides as under:
"14. Acquiring minimum qualifications under
proviso to section 23(2):- (1) The State Government
shall provide adequate teacher education facilities
to ensure that all teachers in schools referred to in
Sub-clause (i) of clause (n) of section 2, who do not
possess the minimum qualifications laid down
under section 23, at the time of commencement of
the Act, to acquire such minimum qualifications
within a period of five years from the
commencement of the Act.
5. HP Rules 2011 have been enacted exercising
power under Section 38 of the Act, 2009 and in Section 23 of
the Act, 2009, academic qualification of teachers has been
providing time in which it is required to be acquired by the
un-trained teachers already working in the Educational
Institutions. Section 23 reads as under:-
"23" (1) Any person possession such minimum qualifications, as laid down by an academic authority, authorized by the Central Government by notification, shall be eligible for appointment as a teacher.(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification;Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under subsection (1), shall acquire such minimum qualifications within a period of five years.(3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed".
7. Respondent No. 4 has raised objection with regard to maintainability of the writ petition against un-aided private educational institution run by Society pointing out that no mandamus can be issued against respondents No. 3 & 4 as a writ under Article 226 of the Constitution of India is not maintainable against them and petitioner, for redressed of his grievance, if any, should have approached the Civil Court. This issue is not res integra and a writ petition against a private person/entity is maintainable under Article 226 of the Constitution subject to fulfilling certain conditions.
8. The Apex Court in case Binny Limited and another Versus V. Sadasivan and others with D.S. Veer Ranji versus Ciba Specialty Chemicals (I) Ltd. and another reported in (2005) 6 Supreme Court Cases 657 has held as under:-
"11" The Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and that the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the government to run industries and to carry on trading activities. These have come to be known as Public Sector Undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between the public functions and private functions when it is being discharged by a purely private authority. A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (Fifth Edn.) by de Smith, Woolf & Jowell in Chapter 3 para 0.24, it is stated thus:"A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides "public goods" or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including: rule-making, adjudication (and other forms of dispute resolution); inspection; and licensing.Public functions need not be the exclusive domain of the state. Charities, self-regulatory organizations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd''s of London, churches) may in reality also perform some types of public function. As Sir John Donaldson M.R. urged, it is important for the courts to "recognise the realities of executive power" and not allow "their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted". Non-governmental bodies such as these are just as capable of abusing their powers as is government."
9. In K. K. Saksena Vs. International Commission on Irrigation & Drainage and others, reported in (2015) 4 SCC 670, the Apex Court has held as under:-
" 43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is a ''State'' within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. Reason is obvious. Private law is that part of a legal system which is a part of Common Law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is ''State'' under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law.44. Within a couple of years of the framing of the Constitution, this Court remarked in Election Commission of India v. Saka Venkata Subba Rao [10] that administrative law in India has been shaped in the English mould. Power to issue writ or any order of direction for ''any other purpose'' has been held to be included in Article 226 of the Constitution ''with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of the King''s Bench in England. It is for this reason ordinary ''private law remedies'' are not enforceable through extraordinary writ jurisdiction, even though brought against public authorities (See - Administrative Law; 8th Edition; H.W.R. Wade & C.F. Forsyth, page 656). In a number of decisions, this Court ha held that contractual and commercial obligations are enforceable only by ordinary action and not by judicial review.45. On the other hand, even if a person or authority does not come within the sweep of Article 12 of the Constitution, but is performing public duty, writ petition can lie and writ of mandamus or appropriate writ can be issued. However, as noted in Federal Bank Ltd. (supra), such a private body should either run substantially on State funding or discharge public duty/positive obligation of public nature or is under liability to discharge any function under any statute, to compel it to perform such a statutory function".
10. In case Mrs. Sobha George Adolfus Versus State of Kerala, reported in AIR 2016 SCC 73, after considering various judgments on this issue the Apex Court has held as under :-
"15. The State under Article 21A of the Constitution is obliged to provide free and compulsory education upto the age of 14 years. Thus, there may not be any difficulty in holding that, even an unaided educational institution imparting education to the children upto the age of 14 years is discharging a State function. Thus, a W.P.(C).No.30712/2015 writ petition would be maintainable as against a private body which discharges a State function of imparting education to the children upto the age of 14 years...... 20. The fundamental right guaranteed under Article 21 has been given horizontal application in several judgments of the Hon''ble Supreme Court by applying into private actions. In Consumer Education & Research Centre and others v. Union of India and others [1995 3 SCC 42], the Hon''ble Supreme Court in a challenge made in a Public Interest Litigation ordered enforcement of fundamental rights as against private employers by directing them to provide protective measures to the workmen".
11. In view of ratio of law laid down by Apex Court, it is clear that writ of mandamus can be issued against a private person/institution in the given facts and circumstances of the case where the said person/Institution is discharging public duty or positive obligation of public nature or is under liability to discharge any function under any statute; to compel it to perform such statutory function.
12. In present case admittedly respondent No. 4 is not an authority or instrumentality of the State under Article 12 of the Constitution. Its status is like a private person. Respondent No. 4 is discharging function of imparting education. Article 21 of the Constitution of India provides protection of life and personal liberty and right of livelihood which is a Fundamental Right and without opportunity of living life with dignity, it cannot be said that right to life is protected. Education is a basic requirement to enjoy life in dignified manner. Therefore, right to have education is also part of right to life i.e. Fundamental Right guaranteed under the Constitution. As the education has influence on personality and conduct of an individual ultimately affecting his right to enjoy life with freedom and according to own will as provided in the Constitution. Thus, State has constitutional obligation to provide educational facilities to its citizens and a body or person, ventured in the same field, is performing the said function on behalf of State and is performing public function. Therefore, respondent No. 4 while performing function of imparting education is discharging public duty i.e. a state function.
13. In present case, impugned action of respondent No. 4 is also based on the statutory provisions enacted by the State. In this case, not only for imparting education but also for discharging a function in furtherance to a duty cast upon it under a Statute at the time of determining the condition of service to its teachers, writ petition under Article 226 of the Constitution is maintainable against respondent No. 4 as for ousting petitioner from job, respondent No. 4, has referred norms prescribed by the Board with respect to minimum requisite qualifications to be possessed by teachers. Therefore, at the time of deciding the removal of teachers including petitioner, respondent No.4 was acting on behalf of the State and was discharging function of the State in pursuance to the duty assigned to the Management of the School as per the provisions of Act, 2009 and H.P. Rules, 2011 framed thereunder.
14. For the aforesaid reasons, impugned action of respondent No. 4 is also part of public duty devolved upon it under provisions of Statute and, therefore, in present case impugned action is amenable to writ jurisdiction of this Court. Hence, present petition is maintainable against the respondent No.4, irrespective of the fact that whether institution is aided or un-aided one.
15. Now it is to be considered whether the action taken by respondent No. 4, in removing petitioner, is in consonance with the provisions of law or not.
16. Section 23 of the Act, 2009 provides qualifications for appointment and also terms and conditions of service of teachers. It also provides that a teacher, who, at the time of commencement of the Act 2009, does not possess minimum qualifications laid down in this Section, shall acquire such minimum qualification within a period of 5 years and similarly Rule 14 of the H.P. Rules 2011, also provides 5 years lean period to teachers from the date of commencement of the Act, for acquiring the requisite qualifications. The Act, 2009 came into force w.e.f. 01.04.2010 and the H.P. Rules 2011, have been enacted with effect from 05.03.2011. Petitioner has been removed from service on 30.04.2011 under the garb of enactment of the Act and Rules supra prescribing requisite minimum qualification despite the fact that petitioner was entitled for 5 years lean period i.e. at least upto 01.04.2015 to acquire requisite qualification provided in Section 23 of the Act, 2009 and Rule 14 of H.P. Rules 2011.
17. Further, from the proceedings of meetings of the Management placed on record, it appears that petitioner was not removed for want of qualification but her removal from post was decided by Management with effect from 30.04.2011 for the reason that she was not cooperating with the Management in replacing teachers. Be it as may be, in any case, notice dated 30.04.2011 relieving the petitioner specifically states that she has been removed being untrained teacher whereas in view of lean period of 5 years provided in the Act 2009 and the H.P. Rules 2011, she was entitled to serve the said period and, therefore, impugned action of respondent No. 4 is not only contrary to the provisions of the relevant Act and Rules but also in violation of right of petitioner provided under the said provisions to have a chance to acquire requisite qualifications within 5 years.
18. It is submitted by the respondent No. 4 that in any case, petitioner was not entitled to be continued in service after 58 years of age as she was to be retired from service after 58 years and on the date of removal of service she was 56 years old and her date of birth 20.05.1955 is also mentioned in Annexure P-2 placed on record by her. Therefore, petitioner is not entitled to have mandamus for reinstatement, as prayed for and as such, quashing of notice dated 30.11.2011 (Annexure P-5) will be a futile exercise.
19. Learned counsel for petitioner submits that statutory right of petitioner has been infringed for redressal of which petitioner has approached the Court within reasonable time and there is no fault on the part of petitioner for pendency of petition for adjudication and, therefore, she submits, in changed circumstances, the Court has power to mould the relief and to award adequate compensation for illegal removal of petitioner as petitioner has also prayed for passing of any other order in facts and circumstances of the case.
20. It is settled law that for the interest of justice, the Court can mould the relief, more particularly, when prayer for any other order in facts and circumstances of the case has also been made.
21. Monthly wages of the petitioner as mentioned in notice of removal dated 30.04.2011 (Annexure P-5), was Rs.5000/-, which is not disputed. Petitioner has completed 58 years on 20.05.2013. She has been removed 25 months earlier to date of her retirement. Had she been in service, she would have received at least Rs.1,25,000/- during May 2011 to June 2013 and petitioner would also have earned interest thereupon. Though it is also hard fact that petitioner has not worked for this period but at the same time it is also true that she had not desisted from performing her job on her own but was prevented by respondent No. 4 from discharging her duty as Head Teacher for impugned removal.
22. Considering respective submissions of learned counsel of parties and documents placed on record, and also in facts and circumstances discussed above, it is appropriate that an amount of Rs.75,000/- is awarded as compensation in favour of the petitioner with direction to respondent No. 4 to pay the said amount on or before 31.8.2017, failing which petitioner shall also be entitled for interest thereupon @ 6% per annum w.e.f. 01.06.2013 till full and final payment. It is also made clear that petitioner is also entitled for all other due and admissible benefits, for which she would have been entitled on her retirement on completion of 58 years by treating her in service till her retirement at the age of 58 years, to be calculated on the basis of salary as has been paid to her counterpart engaged after her removal or her own salary whichever is higher. Needless to say delay in payment of such benefits, if any, will also invite payment of interest thereupon @6% per annum w.e.f. 1.6.2013 till full and final payment.
23. Writ petition is allowed in the aforesaid terms. Pending application(s), if any, also stand disposed of. No order as costs.
