Chattisgarh High Court
Smt. Pooja Yadav vs Holy Cross Senior Secondary School on 26 June, 2025
1
SMT
NIRMALA
RAO
2025:CGHC:28132
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 4785 of 2017
1 - Vidyakant Tripathi S/o Late Gopinth Tripathi, Aged About 60 Years R/o Itta
Bhatthadafai, Haldibadi, Chirmiri, District Koriya, Chhattisgarh., Chhattisgarh.
--- Petitioner(s)
versus
1 - State Of Chhattisgarh Through The Secretary, Department Of Education,
Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh.,
Chhattisgarh
2 - The Collector, Koriya, Chhattisgarh., District : Koriya (Baikunthpur),
Chhattisgarh
3 - Block Education Officer, Koriya, District Koriya, Chhattisgarh., District :
Koriya (Baikunthpur), Chhattisgarh
4 - Principal/ Authorized Officer, Saraswati Shiksha Sansthan, Chhattisgarh,
Behind Ayurvedik College, Saraswati Vihar, Raipur, Chhattisgarh., District :
Raipur, Chhattisgarh
--- Respondent(s)
With
WPS No. 4885 of 2017
1 - Santavana Mukharjee S/o Late Dilip Mukharjee, Aged About 61 Years R/o
Azad Nagar Godripara, Chirmiri, District Koriya, Chhattisgarh, Chhattisgarh.
--- Petitioner(s)
versus
1 - State Of Chhattisgarh Through The Secretary, Department Of Education,
Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh,
Chhattisgarh
2 - The Collector, Koriya, Chhattisgarh, District : Koriya (Baikunthpur),
Chhattisgarh
3 - Block Education Officer, Koriya, District- Koriya, Chhattisgarh, District :
Koriya (Baikunthpur), Chhattisgarh
4 - Principal/ Authorized Officer, Saraswati Shiksha Sansthan, Chhattisgarh,
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Behind Ayurvedik College, Saraswati Vihar, Raipur, Chhattisgarh, District :
Raipur, Chhattisgarh.
--- Respondent(s)
With
WPS No. 4921 of 2017
1 - Bhagwan Das Gupta S/o Late Shri Ramvishal Gupta, Aged About 60
Years R/o Ward No.17, Magzin Dafai, Haldibadi Chirmiri, District Koriya,
Chhattisgarh, Chhattisgarh
--- Petitioner(s)
versus
1 - State Of Chhattisgarh Through The Secretary, Department Of Education,
Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh,
Chhattisgarh
2 - The Collector, Koriya, Chhattisgarh, District : Koriya (Baikunthpur),
Chhattisgarh
3 - Block Education Officer, Koriya, District- Koriya, Chhattisgarh, District :
Koriya (Baikunthpur), Chhattisgarh
4 - Principal/ Authorized Officer, Saraswati Shiksha Sansthan, Chhattisgarh,
Behind Ayurvedik College, Saraswati Vihar, Raipur, Chhattisgarh, District :
Raipur, Chhattisgarh.
--- Respondent(s)
With
WPS No. 5626 of 2017
1 - Subhash Singh S/o Chandrashekhar Singh Aged About 61 Years R/o
Kalshidafai, Haldibadi, Chirmiri, District Koriya Chhattisgarh. , Chhattisgarh
--- Petitioner(s)
versus
1 - State Of Chhattisgarh Through The Secretary Department Of Education
Mantralaya Mahanadi Bhawan Naya Raipur District Raipur Chhattisgarh. ,
Chhattisgarh
2 - The Collector, Koriya Chhattisgarh. , District : Koriya (Baikunthpur),
Chhattisgarh
3 - Block Education Officer, Koriya District Koriya Chhattisgarh. , District :
Koriya (Baikunthpur), Chhattisgarh
4 - Principal / Authorized Officer, Saraswati Shiksha Sansthan Chhattisgarh ,
Behind Ayurvedik College, Saraswati Vihar Raipur Chhattisgarh. , District :
Raipur, Chhattisgarh.
--- Respondent(s)
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With
WPS No. 4616 of 2018
1 - Smt. Pooja Yadav W/o W/o Shriram Yadav Aged About 34 Years R/o
Bayron Bazar, Behind Saint Paul School, Raipur, District Raipur,
Chhattisgarh., District : Raipur, Chhattisgarh.
--- Petitioner(s)
versus
1 - Holy Cross Senior Secondary School Through The Principle, Byron
Bazar, Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh
2 - District Education Officer, Pension Bada, Raipur, District Raipur,
Chhattisgarh., District : Raipur, Chhattisgarh.
--- Respondent(s)
---------------------------------------------------------------------------------------------------
For respective Petitioners : Shri Sudeep Johri, Shri
Punit Ruparel and Shri Kalpesh
Ruparel, Advocates.
For Respondents/State : Ms. Shailja Shukla, Dy.G.A., Shri
Shubham Bajpayee and Shri Dashrath
Prajapati, P.L.
—————————————————————————————————
Hon’ble Shri Justice Rakesh Mohan Pandey
Order on Board
26.06.2025
1. In WPS Nos.4785 of 2017, 4885 of 2017, 4921 of 2017 & 5626 of
2017, the petitioners have challenged the order dated 1.8.2017,
wherein it was stated that they would be superannuated on completion
of 60 years of age.
2. The facts, in a nutshell, are that the petitioners were working as
Acharya (Clerk) under respondent No.4/ Principal Saraswati Shiksha
Sansthan, Raipur. Their services were regularized. Pursuant to the
service rules of Saraswati Shiksha Sansthan, Chhattisgarh,
respondent No.4 issued orders to the effect that the petitioners would
retire from their services after completion of 60 years of age. The
petitioners have claimed that under the earlier service rules, effective
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from the 1st July, 2005, the age of retirement was 62 years according
to Rule 13. It is also pleaded that according to the Chhattisgarh
Shaskiya Sevak (Adhivarshiki-Ayu) (Sanshodhan) Ordinance, 2013,
the retirement age of a government servant is 62 years. It is also
pleaded that the petitioners were forced to superannuate prior to the
completion of 62 years, which is illegal and arbitrary. Shri Punit
Ruparel, Advocate would submit that when the petitioners joined the
service, the Rules of 2017, which provides for retirement at 60 years of
age, was not in existence; therefore, the order issued by respondent
No.4 forcing their retirement is illegal, arbitrary and violative of Articles
14 & 16 of the Constitution of India. With regard to the maintainability
of the writ petition, he would submit that the Saraswati Shishu Mandir
Schools were established according to the Rules framed by the State
Government, therefore, the action of respondent No.4 is amenable to
the writ jurisdiction.
3. The facts of WPS No.4616 of 2018 are that the petitioner was
appointed as a Teacher on probation for a period of nine months under
respondent No.1 – Holy Cross Senior Secondary School, Raipur. The
petitioner was declared a permanent Teacher after completion of the
probation period. It is pleaded that she was granted maternity leave in
March, 2012 on an application moved by her. She was granted
maternity leave on the principle of ‘No Work No Pay’ vide order dated
6.3.2012. It is further pleaded that the petitioner moved applications to
resume her services on 14.6.2012 and 22.6.2012 and those
applications were replied to by respondent No.1 on 20.6.2012 &
22.6.2012, but she was not permitted to resume her services. It is also
pleaded that the petitioner moved an application for another period of
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maternity leave and other leaves in 2015-16. Vide order dated
20.3.2018, her services were terminated.
4. Shri Sudeep Johri, Advocate would submit that respondent No.1,
being an unaided School is covered by the Chhattisgarh Ashaskiya
Shikshan Sanstha (Adhyapakon tatha Anya Karmachariyon Ko
Padachyut Karne/ Sewa Se Hatane Sambandhi Prakriya) Niyam, 1983
(for short ‘Rules, 1983’), which prescribe a procedure for termination of
services under Rules 3 to 13. He would contend that respondent No.1,
without issuing a show-cause notice, article of charge, or conducting
the inquiry, imposed a major penalty.
5. With regard to the maintainability of the writ petition, he would contend
that the writ petition is maintainable as the order of termination was
passed without affording any opportunity of hearing and is contrary to
the Rules of 1983. He would further submit that though respondent
No.1 is a non-governmental institution but the service conditions of the
petitioner were governed according to the Rules, 1983. He would also
submit that in the case of Marwari Balika Vidyalaya vs. Asha
Srivastava, (2020) 14 SCC 449, the Hon’ble Supreme Court has held
that a writ petition is maintainable against the private schools receiving
grant-in-aid because imparting education is a public function, even for
unaided institutions. He would refer to paragraph 15 to buttress his
submission.
6. On the other hand, learned counsels for the respondents would
oppose the submissions made by counsel for the respective
petitioners. They would submit that the petitioners have filed these writ
petitions against the unaided schools/institutions. They would further
submit that the writ petitions filed by the petitioners are not
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maintainable in light of the recent decisions of the Hon’ble Supreme
Court rendered in the matter of St. Mary’s Education Society and
Another vs. Rajendra Prasad Bhargava and Others, (2023) 4 SCC
498 and Army Welfare Education Society, New Delhi vs. Sunil
Kumar Sharma and Others, 2024 SCC OnLine SC 1683.
7. Heard counsel for the parties and perused the documents present on
the record.
8. In WPS Nos.4785 of 2017, 4885 of 2017, 4921 of 2017 & 5626 of
2017, the petitioners have challenged the orders issued by
respondent No.4/ Principal whereby, they were communicated the
date of their retirement on completion of 60 years of age. In these
petitions, the petitioners were appointed between 1982 and 1992.
The petitioners have pleaded that according to the rules of Saraswati
Shiksha Sansthan, Chhattisgarh effective from the 1st July, 2005, the
age of retirement was 62 years whereas, vide amendment effective
from the 1st July, 2017, the age of retirement was reduced from 62
years to 60 years. The petitioners have not produced the service
rules which was in force at the time of their appointment. Since they
were appointed before 2005, the service rules of 2005 would not
apply. Furthermore, the petitioners have already retired and thereafter
preferred these petitions.
9. In WPS No.4616 of 2018, the petitioner informed vide order dated
20.3.2017 that she would not be allowed to teach in the school in the
upcoming session starting from 1st April, 2018. The petitioner was
appointed vide order dated 25.7.2007. Clause 6 of the order of
appointment clearly states that the services of the petitioner would be
governed according to by-laws framed by the management from time
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to time and a copy of the service rules was provided to the petitioner.
It is not in dispute that respondent No.1 is an unaided Institution. The
petitioner moved an application for the grant of maternity leave from
February, 2012 till April, 2012 and also annexed a copy of the medical
certificate. Respondent No.1 vide order dated 6.3.2012, advised the
petitioner to take a rest but it was clarified that the leave would be on
a ‘No Work No Pay’ basis. Vide letter dated 20.6.2012, the petitioner
was informed that she had taken leave of 88 days out of 202 working
days and was directed to resume her duties. Vide letter dated
22.6.2012, the petitioner was informed by the management that she
had taken leave without proper intimation. Vide letter dated
26.7.2012, the petitioner clarified the facts but no attempt was made
to resume the services. Vide letter dated 24.9.2012, the petitioner
sought permission to resume her services. Vide letter dated
17.5.2013, the petitioner informed the management that she took
leave on account of her child’s health issues and to appear in the
M.A. English (Previous year) examination. Taking into consideration
the conduct of the petitioner, the management decided to terminate
her services according to its bylaws.
10. In the matter of Marwari Balika Vidyalaya (supra), a writ petition
before the High Court was filed by an employee of the institution
against the private school receiving grant-in-aid to the extent of
dearness allowance and this fact is evident from a bare reading of
paragraph 1 of the said judgment. After the appointment of
respondent No.1 in that case namely Asha Srivastava, the requisite
papers were referred to the District Inspector of Schools seeking
approval and those papers were further referred to the Director of
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School Education, West Bengal for his opinion. The Hon’ble Supreme
Court in that premises held that the writ application would be
maintainable. The relevant paragraph 15 is reproduced herein below:-
“15. Writ application was clearly maintainable in view of
aforesaid discussion and more so in view of the decision of
this Court in Ramesh Ahluwalia v. State of Punjab & Ors.
(supra) in which this court has considered the issue at
length and has thus observed:
“13. in the aforesaid case, this Court was also
considering a situation where the services of a
Lecturer had been terminated who was working in
the college run by the Andi Mukti Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust. In those circumstances, this Court
has clearly observed as under:(V.R. Rudani case,
SCC PP.700-701, paras 20 & 22)
“20. The term ‘authority’ used in Article 226, in the
context, must receive a liberal meaning unlike the
term in Article 12. Article 12 is relevant only for the
purpose of enforcement of fundamental rights under
Article 32. Article 226 confers power on the High
Courts to issue writs for enforcement of the
fundamental rights as well as non-fundamental
rights. The words ‘any person or authority’ used in
Article 226 are, therefore, not to be confined only to
statutory authorities and instrumentalities of the
State. They may cover any other person or body
performing public duty. The form of the body
concerned is not very much relevant. What is
relevant is the nature of the duty imposed on the
body. The duty must be judged in the light of positive
obligation owed by the person or authority to the
affected party. No matter by what means the duty is
imposed, if a positive obligation exists mandamus
cannot be denied.
22. Here again, we may point out that mandamus
cannot be denied on the ground that the duty to be
enforced is not imposed by the Statute. Commenting
on the development of this law, Professor de Smith
states:’To be enforceable by mandamus a public
duty does not necessarily have to be one imposed
by statute. It may be sufficient for the duty to have
been imposed by charter, common law, custom or
even contract. We share this view. The judicial
control over the fast expanding maze of bodies
affecting the rights of the people should not be put
into watertight compartment. It should remain
flexible to meet the requirements of variable
circumstances. Mandamus is a very wide remedy
which must be easily available ‘to reach injustice
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wherever it is found’. Technicalities should not come
in the way of granting that relief under Article 226.
We, therefore, reject the contention urged for the
appellant on the maintainability of the writ petition.
The aforesaid observations have been repeated and
reiterated in numerous judgments of this Court
including the judgments in Unni Krishnan and Zee
Telefilms Ltd. brought to our notice by the learned
counsel for the appellant Mr. Parikh.
14. In view of the law laid down in the
aforementioned judgment of this Court, the
judgment of the learned Single Judge as also the
Division Bench of the High Court cannot be
sustained on the proposition that the writ petition
would not maintainable merely because the
respondent institution is a purely unaided private
educational institution. The appellant had specifically
taken the plea that the respondents perform public
functions i.e. providing education to children in their
institutions throughout India.” (emphasis supplied).
It is apparent from the aforesaid decision that the Writ Application is
maintainable in such a matter even against the private unaided
educational institutions.
11. In the matter of St. Mary’s Education Society and Another (supra),
the Hon’ble Supreme Court has considered the law laid down in the
matter of Marwari Balika Vidyalaya (supra). It is held that in the
matter of Marwari Balika Vidyalaya (supra), the approval of the State
Government was required, and the facts of the case were
distinguishable. It was further noted that the school in Marwari Balika
Vidyalaya (supra), was receiving grant-in-aid to the extent of
dearness allowance. In paragraph 75.3, the Hon’ble Supreme Court
has held that while a body may be discharging public functions or
performing public duty and thus its actions becoming amenable to the
judicial review by a Constitutional Court, its employees would not have
the right to invoke the powers of the High Court conferred by Article
226 of the Constitution of India in respect of the matter relating to
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service where they are not governed or controlled by the statutory
provisions. The relevant paragraphs 63, 64 & 75.3 are reproduced
herein below:-
“63. In context with Marwari Balika Vidhyalaya (supra), we
remind ourselves of the Bylaw 49(2) which provides that no
order with regard to the imposition of major penalty shall be
made by the disciplinary authority except after the receipt of
the approval of the disciplinary committee. Thus unlike
Marwari Balika Vidhyalaya (supra) where approval was
required of the State Government, in the case on hand the
approval is to be obtained from the disciplinary committee of
the institution. This distinguishing feature seems to have
been overlooked by the High Court while passing the
impugned order.
64. In Marwari Balika Vidhyalaya (supra), the school was
receiving grantinaid to the extent of dearness allowance.
The appointment and the removal, as noted above, is
required to be approved by the District Inspector of School
(Primary Education) and, if any action is taken dehors such
mandatory provisions, the same would not come within the
realm of private element.
75.3. It must be consequently held that while a body may be
discharging a public function or performing a public duty and
thus its actions becoming amenable to judicial review by a
Constitutional Court, its employees would not have the right
to invoke the powers of the High Court conferred by Article
226 in respect of matter relating to service where they are
not governed or controlled by the statutory provisions. An
educational institution may perform myriad functions
touching various facets of public life and in the societal
sphere. While such of those functions as would fall within
the domain of a “public function” or “public duty” be
undisputedly open to challenge and scrutiny under Article
226 of the Constitution, the actions or decisions taken solely
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within the confines of an ordinary contract of service, having
no statutory force or backing, cannot be recognised as being
amenable to challenge under Article 226 of the Constitution.
In the absence of the service conditions being controlled or
governed by statutory provisions, the matter would remain in
the realm of an ordinary contract of service.”
12. Army Welfare Education Society (supra) has considered the law
laid down by the Hon’ble Supreme Court in the matter of K.K.
Saksena v. International Commission on Irrigation & Drainage,
(2015) 4 SCC 670 and held that if a person or authority is “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, the writ would not lie to enforce private law rights. The
Hon’ble Supreme Court in paragraph 42 held that the school run by
the Appellant Society imparts education. Imparting education involves
public duty and therefore public law elements could also be said to be
involved. However, the relationship between the employee and the
society is that of an employee and a private employer arising out of a
private contract. If there is a breach of a covenant of a private contract,
the same does not touch any public law element. The relevant
paragraph 42 is reproduced herein below:-
“42. In view of the aforesaid, nothing more is required to be
discussed in the present appeals. We are of the view that the
High Court committed an egregious error in entertaining the
writ petition filed by the respondents herein holding that the
appellant society is a “State” within Article 12 of the
Constitution. Undoubtedly, the school run by the Appellant
Society imparts education. Imparting education involves
public duty and therefore public law element could also be
said to be involved. However, the relationship between the
respondents herein and the appellant society is that of an
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employee and a private employer arising out of a private
contract. If there is a breach of a covenant of a private
contract, the same does not touch any public law element.
The school cannot be said to be discharging any public duty
in connection with the employment of the respondents.”
13. With regard to the Rules, 1983, Shri Sudeep Johri, Advocate could not
demonstrate that the Rules of 1983 would apply in the matter of the
petitioner, particularly when the order of appointment categorically
states that her services would be governed by the bye-laws framed by
the institution. Furthermore, the educational institutions in question are
unaided and the role of the State is not involved either in the
appointment, approval of appointment, or in any disciplinary action or
conditions of service including the age of retirement. Applying the law
laid down by the Hon’ble Supreme Court in the matter of St. Mary’s
Education Society and Another (supra) and in Army Welfare
Education Society (supra), in my opinion, no case is made out for
interference.
14. Accordingly, these petitions fail and are hereby dismissed. No cost(s).
Sd/-
(Rakesh Mohan Pandey)
Judge
Nimmi