IN THE HIGH COURT OF JHARKHAND, RANCHI
L.P.A No. 367 OF 2009
Mohammad Badruddin
Vs.
1.The State of Jharkhand
2.The Secretary, Secondary Education, Ranchi
3.The Director, Secondary Education, Ranchi
4.The Regional Deputy Director of Education, Dumka
5.The District education Officer, Godda
6.The Secretary, Anjuman Islahul Muslameen, K.Parsa, Godda
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CORAM HON'BLE THE CHIEF JUSTICE
HON'BLE MR.JUSTICE D.K.SINHA
For the Appellant M/s.K.K.Srivastava, D.K.Malityar
For the Respondent Mr.Rajesh Kumar, JC to S.C I
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4/19.11.2009
This appeal has been preferred against the order dated 22.6.2009
passed by the learned Single Judge in W.P (S) No.3552/2008, by which the writ
petition had been rejected since the learned Single Judge was of the view that the
petitioner had raised disputed question of facts, which could not be gone into under
writ jurisdiction.
The petitioner/appellant herein had filed a writ petition praying therein
for quashing a part of the order dated 8.10.2007 passed by the Director, Secondary
Education, holding that the petitioner was entitled to salary from the Minority
Institution which is a Government aided School from January, 1999 to December,
1999 and also from February,2003 to March, 2003 and the arrears were ordered to be
paid to him but the petitioner’s further prayer for payment of arrears of salary for the
period from December, 2004 till the date of filing of the writ petition was rejected,
which was assailed before the learned Single Judge, which was dismissed as stated
above, since the learned Single Judge noticed that it involved disputed question of
facts.
From the facts disclosed, it could be noted that the petitioner had been
discharging duties initially as an Assistant Teacher and subsequently as Headmaster
in the Government aided Minority School known as Anjuman Islahul Muslameen.
However, the school was admittedly not under the control of the State Government as
it was being run by a Co-Operative Society registered under the Societies
Registration Act. The Society, which was running the School, was superseded by
another Society and a dispute arose between the two Societies to control over the
management of the School. As a result of this controversy, the salary of the petitioner
was not paid and he filed a writ petition bearing W.P (S) No.3691/2006 claiming
arrears of salary. The said writ petition was disposed of by the order dated 10.8.2006
where the learned Single Judge granted liberty to the petitioner to approach the
Director, Secondary Education, Ranchi, by filing a detailed representation annexing
all the relevant documents claiming arrears of salary. It further indicated that if such
representation is filed, the Director, Secondary Education, shall consider the same
and take a final decision in the matter of release of the arrears of salary within a
period of two months from date of receipt of the representation.
In our considered opinion, when the petitioner had been discharging
duties only in a Minority School, which was a private Institute run by a Co-Operative
Society and only some grant was given to the School by the Government, the same
could not have been treated to be a Government Institution and therefore, the
Director, Secondary Education, had no role or occasion to decide as to why the
payment of salary be not made to the petitioner. However, the respondent-State did
not prefer any appeal against the order passed by the learned Single Judge to the
effect that the matter could not have been decided by the Director, Secondary
Education, Ranchi, as he had no authority to do so in regard to the private minority
institute and hence, rightly or wrongly the Director, Secondary Education, Ranchi,
decided the matter and held that the salary was payable to the petitioner from
January, 1999 to December, 1999, and from February, 2003 to March, 2003. Strictly
speaking, as already stated, this order could not have been passed by the Director,
Secondary Education, Ranchi, in regard to a Teacher discharging duties in a private
minority school. However, there is no State appeal against the same and hence, we
do not propose to enter into this question, but in so far as the challenge of the
petitioner in regard to denial of salary for the period from December, 2004 till the date
of filing of the writ petition is concerned, the same has not been entertained by the
learned Single Judge on the ground of disputed question of facts. But apart from this
reason, we are also of the view that the writ petition itself was not maintainable
before the learned Single Judge since the petitioner/appellant herein had been
discharging duties admittedly in a Minority Institution which was privately run under
the management and control of a Co-Operative Society.
As already indicated, the learned Single Judge in the earlier writ petition
bearing W.P (S) No.3691/2006 could not have directed the Director, Secondary
Education, Ranchi, to intervene and decide the matter. But the Director, Secondary
Education, Ranchi, had acquiesced with the order and did not prefer any appeal
against the same and hence, this plea cannot be entertained on the second
occasion when the petitioner challenged the denial of salary from December, 2004
upto the filing of the writ petition, apart from the fact that it involved disputed
question of facts. Hence the question whether the petitioner could have been paid
salary by the Co-Operative Society or by the subsequent Co-Operative Society as it
duly took over the control over the School and whether the previous Co-Operative
Society was rightly superseded or not could not have been the matter of adjudication
in the writ petition.
Besides this, we have already stated that the writ petition could not
have been entertained as the respondent institution could not have been treated as a
‘State’ within the meaning of Article 12 of the Constitution merely because some
grants had been given to the School by the Government. The claim of the petitioner,
therefore, cannot be entertained under Article 226 and 227 of the Constitution. The
petitioner/appellant will, however, be at liberty to approach the Education Tribunal, if
he can establish his case for payment of salary from December, 2004 upto the date of
filing of the writ petition.
Subject to this liberty, this appeal is dismissed.
(Gyan Sudha Misra, C.J)
(D.K.Sinha,J)
dey