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The Jammu & Kashmir HC by Single Bench of Justice Javed Iqbal Wani reiterated that writ Petition against even purely private, unaided educational institutions are maintainable while they are performing public function.
Contentions of Petitioner, the petitioner was initially appointed on probation basis as TGT (teacher) in an unaided private school and his appointment was said to be subject to the service rules of school. He was served a notice of termination on the grounds of allegation which he already denied.
Next he has urged in the grounds that the respondents-school is imparting educational activities similar and closely related to those performed by the State in its sovereign capacity and that in the whole process an element of public interest is involved and that the actions of respondents qua the petitioner fall within the ambit and scope of public duty/ public functions as such renders their said actions amenable to writ jurisdiction of this court.
Respondents in their objections filed in opposition to the writ petition have resisted the contentions and grounds raised and urged by the petitioner in the writ petition and have sought dismissal of the writ petition inter-alia upon a preliminary / maiden objection qua the maintainability of the writ on the premise that the respondent-school is a private unaided minority educational institution and not a State under Article 12 of the constitution hence not amenable to writ jurisdiction of this Court.
Respondent further alleged that the order of termination has been issued after following due procedure and after affording an opportunity to the petitioner to to explain his grave misconduct which are against the rules of 2007.
Court’s Reasoning, The foremost issue is regarding maintainability of the writ petition.
Court referred law laid down by Apex Court reported in Marwari Balika Vidyalaya Vs. Asha Srivastava and Ors., reported in 2019 (4) SCALE (600), wherein the Hon’ble Supreme Court based upon (2012) SCC 331 titled as Ramesh Ahluwalia Vs. state of Punjab and Others as also Raj Kumar Vs. Director School Education and Ors, reported in (2016 (6) SCC 541) has held that writ application is maintainable against a purely unaided educational institution performing public functions.
"In the present case the respondent educational institution is unaided minority educational institution yet same is subject to the control and supervision of the Jammu and Kashmir School Education Act of 2002 read with Jammu and Kashmir School Education Rules of 2010."
Court further stated that:
“Section 3 of the said Act makes the provisions of the Act applicable to all the schools in the state be it a private or government school. Section 11 of the Act prohibits establishment and running of a private school without the permission of the competent authority which under section 2 of the Act is an appointee of the Government.
Section 12 of the Act provides for only those private schools to function which are recognized under the Act and section 13 deals with management of private schools. Section 19 and 20 of the Act respectively provide for teaching and non-teaching staff in private schools and conditions of their service required to be framed and notified. For all what emerges from the perusal of above.”
The court stated that the Petitioner had denied all the allegations of the show cause notice essentially requiring therefore respondents to hold a disciplinary enquiry into the matter under Rules of 2007. The respondents though have had contemplated and initialed an enquiry against the petitioner however, seemingly have left the same half a way and instead proceeded to issue impugned communication which admittedly will be said to have caused grave prejudice to the petitioner.
Petitioner has been deprived to substantiate his defense laid by him against the allegations leveled in the show cause notice. The objections set out and the defense taken by the respondents in opposition of writ petition holds no ground.
“This petition is allowed, and the impugned communication No. Press/Gn/34/2020 dated 26.02.2020 is quashed, directing the respondents to reinstate the petitioner against the post in question. The respondents, however, shall be at liberty to either initiate a fresh enquiry against the petitioner qua alleged misconduct or else to resume the enquiry already initiated against the petitioner from the stage it had been stalled / abandoned by the respondents, in accordance with the Rules of 2007 within a period of four weeks from the date of the order.”
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