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Smt. Ila Devi N. Shroff Vs. the Management of Desai Valdhand Vashram, Gujarathi School - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 661 of 1961
Judge
Reported inAIR1963Mys18; (1963)1MysLJ356
ActsConstitution of India - Article 226
AppellantSmt. Ila Devi N. Shroff
RespondentThe Management of Desai Valdhand Vashram, Gujarathi School
Appellant AdvocateG.E. Kotre, Adv.
Respondent AdvocateV. Krishna Murthy ; and V. Tarakaram, Advs.
Excerpt:
.....respective jurisdiction to notify, receive, scrutinise, process, approve and to take appropriate decision in granting mining lease without undue and protracted delay. - 3. now it is well settled law as pointed out by their lordships of the supreme court in sohan lal v. 4. in the case of a private school like the one with which we are now concerned in this case what requires to be therefore examined is whether there is any public duty appertaining to the office of the person against whom the mandamus is sought the performance of which may be compelled by the issue of mandamus......of paragraph 25 of that code, if a member of the staff in the school had to be retrenched, one month's notice should be given to that member of the staff in addition to the payment of the salary for that period. it is urged that the petitioner was not given either one month's notice or the salary for a month specified in that clause. it has also been submitted that the retrenchment was not a bona fide retrenchment but was actuated by mala fides.3. now it is well settled law as pointed out by their lordships of the supreme court in sohan lal v. union of india, (s) : [1957]1scr738 , that a mandamus cannot issue to a private individual and that it could be issued only against a person who can be directed to do an act which appertains to his office and is in the nature of a public duty......
Judgment:

A.R. Somnath Iyer, J.

1. The petitioner is a quondam employee of a private school called the Desai Val hand Vashram Gujarathi School, which is the respondent in this case. She was the Head Mistress of the middle school Section of that institution since September 1959 on a salary of Rs. 175/- a month. By a notice served on her on May 22, 1961, her services were retrenched. The petitioner complains that her retrenchment is opposed to the provisions of paragraph 25 (vi) of Chapter II of the Mysore Educational Grant-in-Aid Code, which was applicable to the school and that we should, therefore, issue a mandamus to the management 01 that school to reinstate the petitioner in her post.

2. Mr. Kotre appearing on behalf of the petitioner has pointed out to us that under Clause (vi) of paragraph 25 of that Code, if a member of the staff in the school had to be retrenched, one month's notice should be given to that member of the staff in addition to the payment of the salary for that period. It is urged that the petitioner was not given either one month's notice or the salary for a month specified in that clause. It has also been submitted that the retrenchment was not a bona fide retrenchment but was actuated by mala fides.

3. Now it is well settled law as pointed out by their Lordships of the Supreme Court in Sohan Lal v. Union of India, (S) : [1957]1SCR738 , that a mandamus cannot issue to a private individual and that it could be issued only against a person who can be directed to do an act which appertains to his office and is in the nature of a public duty. It is an equally firm principle that an applicant for an order of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought. It is only in respect of a legal right that a mandamus will lie and that mandamus can be granted only to compel the performance of duties of a public nature. It Will not accordingly issue for a private purpose or for the enforcement of a mere private right.

4. In the case of a private school like the one with which we are now concerned in this case what requires to be therefore examined is whether there is any public duty appertaining to the office of the person against whom the mandamus is sought the performance of which may be compelled by the issue of mandamus. It may be that although the school is a private school, the management of that school may be Under a duty to perform what may be regarded as a public duty appertaining to the office held. While it therefore cannot be said as a general or inflexible rule of universal application that the mere fact that an institution is a private institution will disentitle an applicant to a mandamus if one can be properly issued even in that case, it is however abundantly clear that before such mandamus can issue it should be shown that the person against whom the mandamus is sought has to carry out a public duly appertaining to his office.

5. The only argument advanced by Mr. Kotre on behalf of the petitioner in this case is that since no teacher of the respondent school in this case could be retrenched unless such retrenchment was preceded by a notice and the payment of a month's salary for the period of that notice, there was a public duty appertaining to the office of the management of the school in this case the performance of which can be compelled by mandamus.

6. Now that duty to issue a notice and to pay salary is what is enjoined by paragraph 25 (vi) of the Mysore Educational Grant-in-Aid Code. The school in this case Which is a private school is the recipient of a grant from the State Government and for the purpose of regulating that grant, certain provisions have been made in what may be regarded as mere administrative instructions issued by the State which are incorporated in the Mysore Educational Grant-in-Aid Code. Those instructions do not create an enforceable condition of service nor do they create any public duty to be performed by the management at the institution although it is the recipient of a grant from the State. It is to my mind clear that the mere fact that a private institution receives grant from the State does not make it a public body nor do the conditions subject to which the grant is made, constitute public duties to be performed by those who are the recipients of the grant.

7. That being the position, this is not in my opinion, a case where we can properly issue any mandamus to the respondent.

8. But Mr. Krishna Murthy, learned Advocate for the respondent, when it was pointed out to him that Clause (vi) of paragraph 25 of the Mysore Educational Grant-in-Aid Code required the management to give to the petitioner in addition to the salary for a month, a month's notice, stated before us that the respondent would have no objection to pay to the petitioner in lieu of the notice which was not given to her, another month's salary in addition to the month's salary to which that clause refers. He had no objection to our issuing a direction to that effect. We accordingly issue a direction that the petitioner shall be paid by the respondent one month's salary which she was drawing namely, Rs. 175/- in lieu of notice in addition to the month's salary which the respondent has offered to her. The result is the petitioner will now be entitled to receive from the management salary for two months which the respondent will pay to her.

9. This writ petition is accordingly dismissed. There will be no order as to costs.

Ahmed Ali Khan, J.

10. I agree.


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