Sudipta Dhar vs State Of Meghalaya

1) The brief facts of the case is that the petitioner was working as an Assistant Teacher in St. Margaret's Higher Secondary School, Shillong on being appointed in the year 1986. Her date of birth as recorded is 01.03.1959 and in due course of service, would have retired on 01.03.2019, if 60 years was the retirement age. The grievance as portrayed in the writ petition is that vide letter dated 10.02.2017 (Annexure-III), the petitioner was informed by the respondents (Management) that she was to retire on 01.03.2017 on attaining 58 years of age. The petitioner's case is that as the School is governed by the Amended Assam Aided High and Higher Secondary School Employees Rules, 1965, (hereinafter called the Rules of 1965) the same which has been made applicable to the State of Meghalaya, which prescribes the age of superannuation at 60 years, the letter dated 10.02.2017 which retired her w.e.f. 01.03.2017 at the age of 58 years is illegal and arbitrary, and as such the same is assailed by way of this writ petition.

2) Mr. H.R. Nath, learned counsel for the petitioner submits that the School i.e. St. Margaret's Higher Secondary School, Shillong is an Aided School which was receiving Grant in Aid from the Government of Meghalaya, and that the age of superannuation as provided in Rule 11 of the Amended Assam Aided High and Higher Secondary School Employees Rules, 1965 of teachers who are serving in Aided Government Schools is 60 years. He submits that the petitioner was appointed in the said School which was governed by the aforementioned Rules and as such in normal course would have retired on attainment of 60 years of age. However, he submits that the School in a most arbitrary manner by the impugned letter dated 10.02.2017 had informed the petitioner that she had to retire at the age of 58 years which compelled her to approach this Court.

3) He further submits that though the Respondent school had relinquished the Grant in Aid as provided by the Government w.e.f. 01.03.2017 onwards, and even though thereafter in effect, the School became a private un-aided minority educational institution, he contends that the petitioner has acquired a vested right to continue in service till the age of 60 years, as provided in the Rules of 1965, in view of the fact that the petitioner was appointed during the time when the School was an Aided School and that the impugned letter dated 10.02.2017 was issued when the School was still then an Aided School. As such, he submits that the action of the Respondents School, is arbitrary and illegal and the petitioner was entitled to be in service till she attained the age of 60 years. He further submits that at the time of institution of the writ petition, the writ petitioner was still in service but now she has since completed 60 years of age on 01.03.2019. Learned counsel lastly submits that though there is no question of her being taken back in service, she should however be compensated by directing the respondents to pay the full salary for the 2 years of service that she has lost. Learned counsel to support his arguments on the vested right to continue has placed reliance on the case of Miss Raj Soni vs Air Officer Incharge Administration and anr. reported in AIR 1990 SC 1305.

4) Mr. K.P. Bhattacharjee, learned GA on behalf of the respondents No. 1, 2 & 3 only submission is that St. Margaret's Higher Secondary School, Shillong was earlier under the Government Grant in Aid School but the aforesaid School vide letter dated 16.02.2017 had made a prayer for relinquishing the Grant in Aid which was enjoyed by the School and that w.e.f. 01.03.2017 the said School is running on its own without any Grant in Aid and have become fully a private minority un-aided educational institution.

5) Mr. D.K. Warjri, learned counsel for the respondents' No. 4, 5 & 6 firstly has raised the issue of maintainability of the writ petition and submits that since the School is presently a private minority un-aided educational institution; no writ would lie against it. With regard to the other contentions of the writ petitioner, he submits that though the School was earlier under the Grant in Aid scheme, the same was relinquished w.e.f. 01.03.2017. He also draws the Court's attention to the letter dated 16.01.2017 whereby the sponsoring body in this case the Provincial Council had informed the School about of the decision to relinquish the Grant in Aid and also that the Service Rules as applicable to the private minority un-aided educational institution will be applicable including the age of retirement at 58 years (Annexure-1). He further draws this Court's attention to the letter from the Respondent school to the Director, School Education & Literacy, Meghalaya, Shillong communicating the resolution of the Managing Committee held on 07.02.2017 which had unanimously resolved to relinquish all the Grant in Aids received by the School from the Government of Meghalaya w.e.f. 01.03.2017 onwards. He further submits that notwithstanding the fact that Grants had earlier been received which were used for payment of staff salary, the fact that the School is a private minority un-aided educational institution is undisputed. He submits that the decision to fix the age of superannuation at 58 years is as per the Service Rules governing the private minority un-aided educational institution and that is applicable to all employees of the institution and therefore the right claimed by the petitioner to continue in service up to 60 years is unfounded. The learned counsel for the respondents has placed reliance on the judgment dated 26.07.2016 passed in Civil Appeal No. 7030 of 2016 in the case of Committee of Management LA Martiniere College Lucknow wherein the Hon'ble Supreme Court has held that the writ petition is not maintainable against a minority institution. He also placed reliance on the decisions of other High Courts on this point to reinforce his argumentswith regard to maintainability. With regard to the retirement age, the learned counsel has relied upon the decision of Kerala High Court in the case of V. Saudamini vrs. The General Manager & Inspector dated 01.07.2011 with regard to the question of a vested right to continue in service up to the age of 60 years.

6) I have heard learned counsel for the parties.

7) As can be discerned from the facts of the case, the main points to be adjudicated by this Court is whether a writ petition will be maintainable, in view of the fact that the School presently is a private minority un-aided educational institution and whether the writ petitioner is entitled by way of legitimate expectation and by the operation of the Amended Assam Aided High and Higher Secondary School Employees Rules, 1965 to retire only at the age of 60 years and not 58 years as fixed by the respondent School. The fact that the School presently is a private minority un-aided educational institution is not disputed. Article 30 of the Constitution of India,in context to the rights of the minority institution has been frequently considered in several cases decided by the Hon'ble Supreme Court as well as High Courts. An eleven Judges Bench of the Hon'ble Supreme Court in the case of T.M.A. Pai, has addressed the issue as to whether statutory provision which regulate the facets of administration, such as appointment of staff, employees, teachers etc. including service conditions would interfere with the right of administration of a minority institution. It was held that in the matter of day to day management like appointment of staff, teaching and non-teaching, administrative control over them, the management should have the freedom and there should not be any external control agency as far as un-aided educational educations are concerned.

8) Apart from other judgments, as referred and discussed above, in a most recent Judgment dated 09.07.2019 of the Hon'ble Supreme Court in the case of Trigun Chand Thakur vs. State of Bihar &Ors. in Civil Appeal No(s). 10003 of 2010, the settled position of law that a writ petition against a privately managed school is not maintainable has been reiterated. As such in view of the legal position and in view of the fact that a Managing Committee of a private un-aided school especially minority institution as in the instant case is not a "State" within the meaning of Article 12 of the Constitution of India, the instant writ petition is not maintainable. The judgment as cited by the learned counsel for the petitioner Miss Raj Soni vs Air Officer Incharge Administration and anr.(supra) is of no help, inasmuch as, the maintainability was not discussed and further it was a case of clear discrimination as other teachers superannuated at 60 years of age.

9) The second aspect for consideration, that is, whether the petitioner's right has been infringed upon by being made to retire at the age of 58 years, when her legitimate expectation was to serve until the age of 60 years by the operation of the Amended Assam Aided High and Higher Secondary School Employees Rules, 1965 has been made academic by the finding as to maintainability. However, the fact that remains is, except for the change of circumstances the writ petitioner would have in normal course retired at the age of 60 instead of being made to retire at the age of 58 years. The normal remedy therefore, especially as she has since completed 60 years of age would be to seek for damages and a declaration that her termination was wrongful before a competent Civil Court.

10) In view of the fact and circumstances as stated above, the writ petition being not maintainable, the same is therefore dismissed and disposed of accordingly.

11) No order as to costs.