Skip to content


Jayantilal Ratilal Thakkar Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR461
AppellantJayantilal Ratilal Thakkar
RespondentState of Gujarat and ors.
Cases ReferredIn Shah Babulal Jadavji and Co. v. Shri R. Balkrishnan
Excerpt:
- s.h. sheth, j.1. the petitioner was the head master of the primary school run by shahpur education trust in the city of ahmedabad. the school is named as shahpur balvikas primary school. he joined the school as the head master on 5th june 1972. his employer found that his work was not satisfactory and, therefore, discharged him from service with effect from the end of the current term of 1974. it appears that against this order of discharge he did not approach any authority but filed this petition.2. the only contention which mr. majmudar has raised before me is that the order of discharge made against the petitioner is mala fide and contrary to the principles of natural justice. the first question which arises for my consideration is whether the petitioner has any statutory right in the.....
Judgment:

S.H. Sheth, J.

1. The petitioner was the Head Master of the Primary School run by Shahpur Education Trust in the City of Ahmedabad. The school is named as Shahpur Balvikas Primary School. He joined the school as the head master on 5th June 1972. His employer found that his work was not satisfactory and, therefore, discharged him from service with effect from the end of the current term of 1974. It appears that against this order of discharge he did not approach any authority but filed this petition.

2. The only contention which Mr. Majmudar has raised before me is that the order of discharge made against the petitioner is mala fide and contrary to the principles of natural justice. The first question which arises for my consideration is whether the petitioner has any statutory right in the matter of security of his tenure which has been violated by the impugned order of discharge. Mr. Majmudar has invited my attention to Sub-section (2) of Section 2 of the Bombay Primary Education Act, 1947 which defines approved school it is an admitted fact that the school in question is an approved school. Sub-section (17) of Section 2 defines primary school it is also an admitted fact that the school in question is a primary school. There is no section in the Bombay Primary Education Act, 1947 which attracts or grants a semblance of protection to a teacher or a head master against his being discharged from service by his employer.

3. Mr. Majmudar has invited my attention to Sections 38 to 40, 44, 45, 46A and 48. He has also invited my attention to Rules 70 and 193 of the Bombay Primary Education Rules, 1949. Section 38 deals with subjects, curricula, books and standards of teaching of approved schools. Section 39 deals with recognition of and grants to approved schools under private management. Section 40 deals with matters relating to inspection of approved schools. These three sections do not in any manner whatsoever deal with or refer to any statutory protection which a teacher or a head master of a primary school run by a trust has. Section 44 deals with primary education fund which is to be maintained by every district school board and by every authorised municipality. It has no reference to matters of security of tenure for teachers or head masters of private schools run by trusts similarly, Section 45 deals with application of primary education fund. It has got to be read in light of Section 44. If Section 44 does not apply to a teacher, then Section 45 cannot apply to it. Section 46A deals with the establishment of a provident fund for the staff maintained by district school boards. The school in question was not run and maintained by the district school board, Section 46A, therefore, has no application to the instant case. Section 48 deals with inspection of schools and authorises the State Government to appoint such officers as it may deem necessary for the purposes of superintendence and inspection and generally for the purposes of giving effect to the provisions of the Act. The appointment and maintenance of the inspectorial staff cannot imply a statutory protection in the matter of tenure of service of teachers and head masters of private schools run by a trust. There are no other sections to which Mr. Majmudar has drawn my attention. Section 63 confers upon the State Government rule-making power. The Bombay Education Rules, 1949 have been made under that section. Rule 70 to which Mr. Majmudar has invited my attention defines the duties of primary School Teachers and Head Teachers. It also defines the duties of Taluka Teachers and of teachers appointed as super intendants of hostels. Rule 70A defines the duties of some class iv servants Rule 193 deals with the establishment of provident fund. A close reference to these rules to which Mr. Majmudar has invited my attention makes it clear that they do not have any application to matters relating to security of tenure fort archers and headmasters of private schools run by trusts. It is, therefore, clear that in the matter of security of tenure their is no statutory protection which a primary teacher or a Head Master of a primary school run by a private body or a trust enjoys if he has no statutory right, he cannot seek enforcement of a non-statutory or contractual right by invoking the constitutional jurisdiction of this High Court. In my opinion, so far as a primary teacher is concerned, the security of tenure is governed by the relationship of master and servant or by contract. The contractual obligations between master and servant or between an employer and an employee cannot be enforced by a writ of this court.

4. In Har Shankar and Ors. v. The Dy. Excise and Taxation Commissioner and Ors. : [1975]3SCR254 it has been held by the Supreme Court that the writ jurisdiction of High Courts under Article 226 of the constitution is not intended to facilitate avoidance of obligations voluntarily incurred in other words, contractual obligations cannot be avoided through writ petition.

5. Mr. Majmudar has invited my attention to another decision of the Supreme Court in Sirsi Municipality v. Cecelia Kom Francis Tellis : (1973)ILLJ226SC . It was a case of a Municipality established by a statute the Municipality had dismissed its employee without giving him a reasonable opportunity of being heard in defence. The Supreme Court held that Rule 143 of sirsi municipality rules made under Section 46 of the Bombay district municipal Act, 1901 imposed upon the Municipality a mandatory obligation torefer to the writ ten statement of the employee concerned and then to make a written order of dismissal. Since in the opinion of the Supreme Court the statutory obligation cast upon Sirsi Municipality by Rule 143 made under Section 46(g) of the Bombay District Municipal Act, 1901 was mandatory, the Supreme Court upheld the contention raised on behalf of the respondent to that appeal there is no such statutory right or obligation which the petitioner has been able to invoke before me and, therefore, I am unable to make use of the principle laid down in that decision in favour of the petitioner.

6. In Shah Babulal Jadavji and Co. v. Shri R. Balkrishnan or his successor. Collector of Kutch, Bhuj I.L.R. 1971 Gujarat 1 it has been held by Mr. Justice D.A. Desai that a writ cannot be issued by a High Court for enforcement of a contractual right against a party to the contract whether such a party is private, individual or state. According to him, a contract enured into with the Government is on the same footing as any other contract between the private persons unless it is shown that party to the contract is Government or public servant or public officer who is acting in exercise of his statutory duty or public duty. He has further held that a writ of certiorari cannot be issued to remedy or set right a breach of a contract which is committed in violation of principles of justice and fair play. In the instant case, no right of the petitioner has been violated either by the state or by a public servant or public officer acting in exercise of his statutory duty or public duty nor does the petitioner have any statutory right which he can enforce against his employer the trust.

7. The last decision to which Mr. Majmudar has invited my attention is an unreported decision of Mr. Justice J.B. Mehta in Special Civil Application No. 776 of 1973 decided on 17th July 1973. In that decision a contention was raised that the claim of a college professor to his gratuity could not be agitated in a writ petition. Mr. Justice J.B. Mehta examined the question and held that the claim which the petitioner in that case had been making was protected by Clause 21 of ordinance 69A made under south Gujarat university Act which, in his opinion, was a statutory provision he, therefore, rejected the preliminary objection to the maintainability of the writ petition which was raised in that case. There is no such situation here. Mr. Majmudar has not been able to point out to me even a semblance of the statutory right which the petitioner enjoys in the matter of security of his tenure I am, therefore, unable to entertain this petition. In my opinion, this writ petition is not maintainable. It, therefore, fails and is dismissed.

Rule is discharged with no order as to costs in the circumstances of the case.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //