Case BriefsHigh Courts

Madras High Court: P. Velmurugan, J., directs Schools to keep a complaint box to make the victims complain about the sexual assault freely and keys of the same to be kept under the control of Secretary District Legal Services Authority.

Factual background

On the date of occurrence, when PW 2, the victim girl was going to attend School while crossing the appellant’s residence, the appellant/accused invited her to his house and with an intent to assault her sexually saying that he will tell the story of Jesus, sexually assaulted her.

It was stated that the appellant touched the victim girl all over her body, removed the bottom of Churidar, embarrassed her and kissed her in right cheek with sexual intent, which involved physical contact without penetration and further the accused threatened the victim girl to come to his house with an intention to repeat the same on her.

In view of the above set of circumstances, the present case was registered against the appellant.

Victim girl stated that after the above-stated occurrence she went to her classroom and intimated the same to her friend who was examined as PW 7 and she clearly spoke about the offence committed by the appellant.

It was noted that the age of the victim girl was 12 years at the time of occurrence and hence the victim was a child under the definition of Section 2(1)(d) of POCSO Act.

High Court stated that the appellant being the head of Religious Institution committed sexual assault on the victim child, who was aged about 12 years at the time of occurrence. Hence the act of appellant came under Section 9(f) punishable under Section 10 of the POCSO Act.

Court on perusal of the evidence produced, opined that the accused failed to rebut the presumption under Section 29 and 30 of the POCSO Act. Trial Court rightly appreciated the evidence of the prosecution and came to the conclusion that appellant/accused committed an offence under Section 9(1) punishable under Section 10 of the POCSO Act.

Bench dismissed the criminal appeal and upheld the trial Court’s decision.

High Court’s recommendation

Further, the Court expressed that normally female students would get fear in lodging complaints against Teacher or Management of School regarding sexual offences, considering their future, hence Government of Tamil Nadu shall form a committee at every school, consisting of the Social Welfare Officer, the Secretary of District Legal Services Authorities, female Police Official not below the rank of District Superintendent of Police, District Educational Officer, female Psychiatrist and Physician from the Government Hospital.

District Educational Officer may inspect the School once in a month to get grievance of the female students with regard to sexual assault and give confidence to the female children to come forward to make complaints against the sexual offenders, who may be a teaching or non-teaching staff and also the members of the Management of the School. [S. Jayaseelan v. State,  2021 SCC OnLine Mad 2580, decided on 12-07-2021]


Advocates before the Court:

For Appellant: Mr S. Samuel Raja Pandian for M/s. M.K. Selvakumar

For Respondent: Mrs T.P. Savitha Government Advocate (Crl.Side)

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Bhusan Barowalia JJ. dismissed the petition refusing to interfere with the transfer order also stating that the government is equally responsible for violating notifications specifically imposing a ban on transfers.

The facts of the case are such that the petitioner after rendering service for a considerable time came to be promoted as Headmaster and was posted at Government High School Naila, Tehsil Churah, District Chamba. Thereafter, the petitioner on 29.09.2020 was appointed as Principal and posted at Government Senior Secondary School, Dugli, Tehsil Churah, District Chamba, where he is serving till date and has filed the instant petition for grant of direction by respondent 1 for transfer from hard area to the soft area/station of the petitioner as he has completed the normal tenure in the hard area and crossed the age of 55 years and family compelling circumstances.

Counsel for the petitioner submitted that the wife of the petitioner is suffering from a hearing problem and is under treatment from Rajiv Gandhi Post Graduate Ayurvedic College and Hospital Paprola, District Kangra, H.P. and the wife of the petitioner is also suffering from Gall Bladder stone and required proper medication and surgery and there is none in the house to look after her as their son is employed in private sector in Noida (U.P.) and two daughters are pursuing their own studies.

The Court relied on judgment Avinash Nagra v. Navodaya Vidyalaya Samiti, (1997) 2 SCC 534 and observed  “The teacher who has been kept in charge, bears more added higher responsibility and should be more exemplary. His/her character and conduct should be more like Rishi and as loco parentis and such is the duty, responsibility and charge expected of a teacher.”

The Court further observed that the petitioner, as mentioned above, is a teacher appointed for educating students and the standards expected of a person practicing the noble teaching profession must be ideal so that the students may know and practice the best principles of civilized life. It would be a very lamentable state of affairs that when teachers who are considered as equal to God, would fall from the highest pedestal to the lowest level by caring and looking after their self-interests alone and not the interest of their pupil(s).

The Court held that the Headmasters, who are later on promoted as Principals, are in all likelihood bound to be above 55 years of age, and on being promoted as such, are liable to be transferred/served anywhere in the State. Therefore, no exception can be taken against the transfer on the ground that the petitioner has crossed the age of 55 years.

In view of the above, petition was dismissed.[Milap Chand v. State of HP, 2021 SCC OnLine HP 560, decided on 22-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Hot Off The PressNews

UGC issues notice that no employing Higher Educational Institutions shall keep in their possession any teacher’s original academic certificates/documents which is akin to depriving them of their rights.
The public notice stated,
It has come to the notice of UGC that many of the universities/colleges/institutes collect the original academic certificates, mark-sheets etc. at the time of issuing employment contracts to the teachers and the continue to retain those documents with them.
Due to the above-stated, teachers face a tough time recovering their certificates from their employer educational institutions when they leave their job. Many even have to forego their better prospects as they are not able to recover their documents in time.
Read the notice here: NOTICE

University Grants Commission
[Public Notice dt. 11-08-2020]
Case BriefsCOVID 19High Courts

Madras High Court: R. Mahadevan, J., while addressing the issue of Government stalling collection of fees, held that,

Federation of Association of Private Schools in Tamil Nadu shall formulate a scheme with respect to collection of fees, not based on the fee structure framed by the Committee, but in instalments for a while, without prejudice to the rights of the parents and children.

State of Tamil Nadu will then take a decision on the above formulated scheme and report to the Court.

Petitioners interest should be protected — why?

K.M. Vijayan, Senior Counsel for the petitioners has contended that even under the Disaster Management Act, conducting classes through electronic media is declared as one of the choices to impart education; several schemes were framed both by Centre and State Governments for COVID-19 crisis, but no scheme with regard to the welfare and protection of the educational institutions was framed.

Further he added that any order that would restrain the private school/college managements from collecting fees would cause embarrassment to them.

“…education is being imparted online and students are availing benefit thereof, the institutions are entitled to charge tuition fees, to meet out their infrastructural expenses.”

Plight of the parents

Taking into consideration the plight of the parents, Advocate General, Vijay Narayan submitted that Government passed impugned order invoking the provisions of Disaster Management Act, restraining the private schools to forcibly collect fees from parents which does not prevents parents from paying the fees voluntarily.

Hema Muralikrishnan, Counsel appearing for private schools contended that Government wants the institution to pay the salaries of the teachers without collection of fees from students.

Bench

Court on perusal of the above contentions, passed the following order:

“petitioners herein are directed to formulate an equation / Scheme with respect to collection of fees, not based on the fee structure framed by the Committee, but in instalments for a while, without prejudice to the rights of the parents and children, by way of detailed representations and submit the same to the Government, with an advance copy marked to the learned Advocate General, through e-mail on or before 02.07.2020.

On such representations being submitted, the respondent Government shall consider the same, take a decision and file a report before this Court, on or before 06.07.2020.”

Matter to be listed on 08-07-2020.[Federation of Association of Private Schools in Tamil Nadu v. All India Private Educational Institutions Association, WPs No. 8490 to 8492 of2020, decided on 30-06-2020]

Case BriefsHigh Courts

Rajasthan High Court: Arun Bhansali J., disposed of a writ petition filed by the petitioner requesting to make pay fixation of the petitioner equal to similarly situated teachers, and the High Court reiterated a decision of the Jaipur Bench.

In the instant case, the petitioner has filed the writ petition seeking direction to the respondents to make the pay fixation of the petitioner in tantamount to other teachers similarly situated and also selected through the same selection process. They requested the court to direct the respondents to step up the pay of the petitioners so as to make it equal to other teachers and they shall also be granted the benefits of seniority, promotion and other consequential benefits.

The Counsel representing the petitioners, Awar Dan Ujjwal in his submissions placed reliance on a decision of the Jaipur Bench in the case of Nand Kishore Sharma v. State of Rajasthan, S.B. Civil Writs No. 12109/2018, wherein the Court had directed the respondents to decide the representations made by the petitioners and grant the same. The Counsel thereafter requested the present Court to grant similar relief to the petitioners.

The High Court took into consideration the submissions of the petitioners and also noted the decision of the Jaipur Bench. The Court thereafter directed the respondents to decide upon the representations made by the petitioners and address them in a time-bound manner. The Court reiterated the direction of the Jaipur Bench:

“In case, a representation is so addressed within the aforesaid period, the State-respondents are directed to consider and decide the same by a reasoned and speaking order as expeditiously as possible in accordance with law. However, in no case later than three months from the date of receipt of the representation along with a certified copy of this order.”[Ganpat Singh Medawat v. State of Rajasthan, 2019 SCC OnLine Raj 1283, decided on 03-07-2019]

Case BriefsHigh Courts

Bombay High Court: A Bench of R.K. Deshpande and S.M. Modak, JJ., dismissed a bunch of petitions filed by various aided colleges and their teaching staff while directing that they cannot avoid the performance of election duty in the upcoming General Elections.

In exercise of powers conferred by Section 159 of the Representation of the People Act, 1951, the respondents called upon the petitioners to perform election duties. This action was challenged by the petitioners.

Having considered the Supreme Court decision in Election Commission of India v. St. Mary’s School, (2008) 2 SCC 390, the High Court reiterated that the teaching staff cannot be called upon to perform election duty on working days. However,, in the present case, University examinations were rescheduled, and thus the petitioners could be conveniently called to perform election duties on the day of polling and one day before and after the day of polling. Holding that teaching staff cannot avoid the performance of election duty, and the failure thereof may attract disciplinary action, the High Court dismissed the petitions. [Shri Gadge Maharaj Mahavidyalaya v. Election Commission of India, 2019 SCC OnLine Bom 600, dated 04-04-2019]

Case BriefsSupreme Court

Supreme Court: The Bench of Abhay Manohar Sapre and Indu Malhotra, JJ has held that pendency of any writ petition by itself does not affect the constitutionality of a Statute. It said:

“It is only when the Court declares a Statute as being ultra vires the provisions of the Constitution then the question may arise to consider its effect on the rights of the parties and that would always depend upon the declaration rendered by the Court and the directions given in that case.”

Background of the case:

“Keeping in view the amendment made in the definition of Section 2(e), which as stated above was not brought to the notice of the Bench, this issue was not considered though had relevance for   deciding the question involved in the appeal. It is for this reason, we prima facie find error in the judgment and, therefore, are inclined to stay the operation of our judgment.”

What Court said in Ahmadabad Pvt. Primary Teachers Association verdict:

“The legislature was alive to various kinds of definitions of the word “employee” contained in various previous labour enactments when the Act was passed in 1972. If it intended to cover in the definition of “employee” all kinds of employees, it could have as well used such wide language as is contained in Section 2(f) of the Employees’ Provident Funds Act, 1952 which defines “employee” to mean “any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment …”. Non-use of such wide language in the definition of “employee” in Section 2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition.”

Ruling:

Hence, after noticing that though the definition was amended in 2009 by Act No.47 of 2009, yet the same was given retrospective effect from 03.04.1997 so as to bring the amended definition on Statute Book, from 03.04.1997, the Court held that the effect of the amendment made in the Payment of Gratuity Act vide Amending Act No. 47 of 2009 on 31.12.2009 was two­fold.

  • the law laid down by this Court in the case of Ahmadabad Pvt. Primary Teachers Association was no longer applicable against the teachers, as if not rendered, and
  • the teachers were held entitled to claim the amount of gratuity under the Payment of Gratuity Act from their employer with effect from 03.04.1997.

When the counsel for the Institution argued that the constitutional validity of Amending Act No. 47 of 2009 was under challenge in this Court in a writ petition, which is pending, the Court rejected the argument and said that pendency of any writ petition by itself does not affect the constitutionality of a Statute.

[Birla Institute of Technology v. State of Jharkhand, 2019 SCC OnLine SC 340, decided on 07.03..2019]

Case BriefsHigh Courts

Allahabad High Court: The Single Judge Bench of Ashwani Kumar Mishra, J. allowed a writ appeal and directed the respondents to allow the petitioner to participate in the recruitment process for Assistant Teachers.
The petitioner had applied for the post of Assistant Teacher in response to the advertisement issued by the respondents. However, he did not possess the No Objection Certificate as required, and thus his candidature was rejected. Counsel for the petitioner stated that now the petitioner holds all the requisite documents and the posts for Assistant Teachers are still lying vacant. Therefore, he prayed that the respondents be directed to appoint the petitioner on the said post.
The High Court held that, the petitioner did not commit a violation of any strict Rule. At the appropriate time, he did not possess the Certificate required, which he now does. Posts were lying vacant for Assistant Teachers in basic education. There was a dearth of teachers in basic education. And as such, the Court directed the respondents to consider the candidature of the petitioner as against the posts lying vacant for Assistant Teachers. That would help in fulfilling the constitutional mandate of providing free basic education to the children aged between 8 to 14 years. [Arvind Kumar Singh v. State of U.P., 2018 SCC OnLine All 494, dated 30-04-2018]