Sri Mahesh Chandra Choudhary vs Secretary, West Bengal Board of Secondary Education & Ors.

DEBANGSU BASAK, J.

The petitioner assails a memo dated January 3, 2014 issued by the Deputy Secretary (Administration)-in-charge of the West Bengal Board of

Secondary Education, informing the petitioner of the decision of the Appeal Committee of the Board taken in its meeting held on December 6, 2013.

The Appeal Committee of the West Bengal Board of Secondary Education it its meeting held on December 6, 2013 rejected the claims of the

petitioner with regard to his retrenchment.

Learned Advocate appearing for the petitioner submits that, the petitioner was retrenched on April 30, 2013. Such order is bad in law and in fact. The

order of retrenchment being bad, the petitioner appealed to the Appeals Committee of the West Bengal Board of Secondary Education. The Appeal

Committee decided the issue against the petitioner without taking into consideration the relevant issues. He relies upon All India Reporter 1970

Supreme Court page 1334 (M/s. Parry Company Limited v. P.C. Pal) and 1983 LAB. I.C. page 1865 (Gammon India Limited v. Niranjan Dass) in

support of his contentions.

Learned Advocate appearing for the school authorities submits that, the writ petition is not maintainable. A writ does not lie against a private

educational institution. In support of such contention, he relies upon 2008 Volume 12 Supreme Court Cases page 675 (State of Uttar Pradesh & Anr.

v. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti & Ors.), an order dated July 26, 2016 passed by the Supreme Court in Civil Appeal No.

7030 of 2016 (Committee of Management, La Martiniere College, Lucknow v. Vatsal Gupta & Ors.) and 2002 Volume 5 Supreme Court Cases 111

(Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & Ors.).

He contends that, there are disputed questions of fact involved. The services of the petitioner becoming surplus the educational institution retrenched

the petitioner. The petitioner was paid all benefits for retrenchment. The issue as to whether the retrenchment was bad in law or in fact is a mixed

question of fact and law which needs to be adjudicated by an appropriate forum. According to him, the petitioner has to approach the Industrial

Tribunal for relief.

The following issues arise for consideration in the present writ petition:-

(i) Is the writ petition maintainable?

(ii) Is the order of retrenchment of the petitioner bad?

(iii) To what relief or reliefs are the parties entitled to?

As noted above, the writ is directed against a decision of the Appeal Committee of the West Bengal Board of Secondary Education. West Bengal

Board of Secondary Education is an authority within the meaning of Article 12 of the Constitution of India. On such ground alone, the writ petition

must be held to be maintainable. Moreover, private educational institution comes within the meaning of ‘Authority’ under Article 12 of the

Constitution of India and is amenable to the writ jurisdiction of the High Court as it is discharging a public function when it imparts education.

Such is the view of the Supreme Court in All India Reporter 2016 Supreme Court page 73 (Dr. Janat Jeyapaul v. SRM University & Ors.). In that

case, a writ petition was filed against a deemed university. The High Court rejected such writ petition on the ground that the deemed university is not

an authority under Article 12 of the Constitution of India. It notes various authorities on the subject and is of the following view:-

“ 21. Applying the aforesaid principle of law to the facts of the case in hand, we are of the considered view that the Division Bench of the High

Court erred in holding that respondent No. 1 is not subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution. In other

words, it should have been held that respondent No.1 is subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution.

This we say for the reasons that firstly, respondent No. 1 is engaged in imparting education in higher studies to students at large. Secondly, it is

discharging ""public function"" by way of imparting education. Thirdly, it is notified as a ""Deemed University"" by the Central Government under Section

3 of the UGC Act. Fourthly, being a “Deemed Universityâ€, all the provisions of the UGC Act are made applicable to respondent No. 1, which

inter alia provides for effective discharge of the public function - namely education for the benefit of public. Fifthly, once respondent No. 1 is declared

as “Deemed University"" whose all functions and activities are governed by the UGC Act, alike other universities then it is an ""authority"" within the

meaning of Article 12 of the Constitution. Lastly, once it is held to be an ""authority"" as provided in Article 12 then as a necessary consequence, it

becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution.

In the light of foregoing discussion, we cannot concur with the finding rendered by the Division Bench and accordingly while reversing the finding

we hold that the appellant's writ petition under Article 226 of the Constitution against respondent No. 1 is maintainable.â€​

Committee of Management, La Martiniere College, Lucknow (supra) finds no reason how a writ petition against the appellant no. 1 before it to be

entertainable. Pradeep Kumar Biswas (supra) finds the Council of Scientific and Industrial Research to be a State within the meaning of Article 12 of

the Constitution of India. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti & Ors. (supra) is of the view that, where there are disputed

questions of fact involved, the writ petition ought not to be entertained.

The institution concerned is imparting education. It is recognized by the West Bengal Board of Secondary Education. It is required to follow the

guidelines and regulations of the Board, failure of which may result in its derecognisation. It fulfils all the authorities laid down in Dr. Janat Jeyapaul

(supra). On the strength of Dr. Janat Jeyapaul (supra), also, the writ petition can be said to be maintainable. The first issue answered in the

affirmative and in favour of the petitioner.

The writ petitioner was working as an accountant-cum-cashier in the school since December 11, 1993. He was sought to be retrenched by the writing

dated April 30, 2013. The letter of retrenchment states that, the petitioner was relocated to Calcutta Business School as Project Assistant to supervise

the work of the project by a writing dated January 27, 2011. After completion of the project, the retention of the petitioner became difficult and,

therefore, he was retrenched with effect from April 30, 2013.

The ground given for retrenching the petitioner is unacceptable even if all statements made in the letter of retrenchment are taken as true and correct.

The records demonstrate that, the petitioner was appointed as an Accountant-cum-Cashier with effect from December 11, 1993. He was working at

the school in such post till his relocation for a particular project. It is not the case of the institution that, the institution does not require any Accountant-

cum-Cashier. It had two persons for the same post prior to the petitioner being assigned to the project. Subsequent to the retrenchment, the institution

continued to have two persons doing the same job as the Accountant-cum-Cashier. Nothing is placed on record to suggest that, the student strength

went down or there exist any justifiable ground for retrenchment. The post held by the petitioner cannot be said to have become surplus. The

institution cannot assign an employee to a particular project and upon such project coming to an end claim that, the services of such employee has

become redundant and, therefore, such employee is required to be retrenched. Significantly, the school is continuing with the post of an Accountant-

cum-Cashier.

The second issue is answered in the affirmative and in favour of the petitioner. In such circumstances, the decision taken by the Appeal Committee of

the West Bengal Board of Secondary Education is set aside. The order of retrenchment issued by the school is also set aside. The school will treat the

petitioner as in service with effect from December 11, 1993 and will proceed to pay all salaries, allowances and entitlements that the petitioner is

entitled to if his service was not retrenched on April 30, 2013. In doing so, the school authorities are entitled to give adjustments to the payments

already made to the  petitioner. The petitioner will be paid his dues within a period of four weeks from the date of communication of this order.

The third issue is answered accordingly. W.P. No. 4037 (W) of 2014 is disposed of. No order as to costs. Urgent certified website copies of this

judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.