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Judgment
Rekha Manharlal Doshit, C.J.—This Appeal under Clause 10 of the Letters Patent is preferred by the respondent nos. 3 and 4, the Notre Dame Academy, against the judgment and order dated 13th May, 2011 passed by the learned single Judge in CWJC No. 4583 of 2006. The appellant claims that it is a Non-Government, unaided minority School. The appellant had employed the respondent no. 1, the writ petitioner, as a teacher in the school. On account of frequent absence and continuous long absence from Service, by order dated 9th July, 1998 made by the Principal of the School, the service of the writ petitioner was terminated. The said order of termination of service was challenged by the writ petitioner before the authority under the Bihar Shops and Establishment Act, 1953 (hereinafter referred to as "the Act"). The same was dismissed on 14th September, 1999 for want of jurisdiction.
The said order and the order of termination of service were challenged by the writ petitioner under Article 226 of the Constitution in CWJC No. 12253 of 1999. The said writ petition came to be disposed of on 24th June, 2004 as under:--
The learned counsel does not press this application on merit. Application stands dismissed.
Since then, the writ petitioner again approached this Court under Article 226 of the Constitution in above CWJC No. 4583 of 2006 to challenge the order dated 14th September, 1999 made by the authority under the Act and to challenge the order of termination of service made by the Principal on 9th July, 1998. The learned single Judge has entertained and allowed the writ petition. The learned single Judge is of the opinion that the proceeding under the Act was rightly rejected as a school teacher does not come within the purview of the Act.
The learned single Judge has, however, relied upon the judgment of the Hon''ble Supreme Court in the matter of T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, ], particularly paragraph 64 thereof. In paragraph 64 of the judgment, the Hon''ble Court has observed, "disputes between the management and the staff of the educational institutions must be decided speedily, and without the excessive incurring of costs". The Hon''ble Court suggested that "an Educational Tribunal be set up in each district in a State". It further suggested that "till specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or the Additional District Judge as notified by the Government".
We may note here that irrespective of the aforesaid observation or suggestion made by the Hon''ble Supreme Court, the Government of Bihar has not established Educational Tribunal for redressal of the grievance of the teachers or other staff, nor the jurisdiction has been conferred upon a District Judge or an Additional District Judge. The only forum, the teacher would be able to approach, would be under the existing law.
In the present case, the writ petition filed under Article 226 of the Constitution suffered from two fold vices. First, the petitioner having withdrawn the earlier writ petition as "not pressed on merit". The petition in the same subject matter would be barred by the principle of constructive res judicata. Second, by no stretch of imagination, the appellant school can be said to be a "State" or an "instrumentality of the State" within the meaning of Article 12 of the Constitution. The appellant school, therefore, is not amenable to the writ jurisdiction of this Court.
In our opinion, the learned single Judge, having noted the factum of dismissal of the earlier writ petition as "not pressed on merit", has erred in entertaining the second writ petition in the same subject matter. The learned single Judge has also erred in entertaining the writ petition under Article 226 of the Constitution against the appellant relying upon the above referred paragraph 64 of the judgment in the matter of T.M.A. Pai Foundation. Jurisdiction of the court has to flow from the statute. For the aforesaid reasons, the Appeal is allowed. Impugned judgment and order dated 13th May, 2011 passed by the learned single Judge in CWJC No. 4583 of 2006 is set aside. CWJC No. 4583 of 2006 is dismissed.