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2006 DIGILAW 1091 (ALL)

PRAVEEN SHARMA v. STATE OF UTTAR PRADESH

2006-04-24

S.RAFAT ALAM, SUDHIR AGARWAL

body2006
JUDGMENT By the Court—Heard Sri J.N. Sharma, learned Counsel for the petitioner. This writ petition is directed against the order dated 10.2.2006 passed by the Director, Greator NOIDA Institute of Technology, Greator NOIDA district Gautam Budh Nagar placing the petitioner under suspension and initiating the disciplinary enquiry by constituting a disciplinary committee. 2. The facts stated in the writ petition reveals that Greator NOIDA Institute of Technology (hereinafter referred to as Institution) is an institution established in the year 2001 by Sri Ram Educational Trust. It has been recognized by the All India Council for Technology Education and affiliated to U.P. Technical University, Lucknow which has been established under Section 3 of the U.P. Technical University Act 2000 having jurisdiction over all technical institution through out the territory of State of U.P.. The management of the Greator NOIDA Institute of Technology is governed by the scheme of administration providing for a governing body consisting 10 members out of which three are nominees of All India Council for Technical Education and two are nominees of U.P. Technical University. The admission in the institution are made on the basis of the combined entrance test namely “U.P. Stale Engineering Examination” conducted by U.P. Technical University every year and the students of the institution appear and qualify the examination conducted by the U.P. Technical University where after they are awarded degree by the said university. 3. The petitioner was appointed by the Director of Institution vide letter dated 25.6.2004 as System Programmer in the department of computer science in the pay scale of Rs. 8000-13000. Clause IV of the appointment letter provides the following condition of appointment: “Your services will be governed as per rules & regulations of the Institute in all matters.” 4. It appears that subsequently the petitioner was considered and appointed as Senior Lecturer on regular basis in the department of computer science w.e.f. 1.8.2005 vide order dated 8.7.2005 and was placed in the pay scale of Rs. 10000-15200. The terms and condition of the appointment includes condition No. 3 providing that his services would be governed as per rules and regulations of the Institute. The petitioner was required to convey his agreement for the terms and conditions of the appointment. 10000-15200. The terms and condition of the appointment includes condition No. 3 providing that his services would be governed as per rules and regulations of the Institute. The petitioner was required to convey his agreement for the terms and conditions of the appointment. It appears that on the allegations of unauthorized absence and dereliction of duty, the institute decided to initiate disciplinary proceedings against the petitioner >and by means of the impugned order dated 10.2.2006 he has been placed under suspension. 5. Learned Counsel for the petitioner submits that the institution being an agency and instrumentality of the State, is an authority under Article 12 of the Constitution and hence the petition is maintainable in as much as the Apex Court in the case of Mohini Jain v. State of Karnataka, AIR 1992 SC 1859, held that education is a fundamental right, the private institutions imparting education are the agencies of the state government and therefore, the institution in question is an “authority” under Article 12 of the Constitution of India and comes within the term “State”. 6. Sri J.N. Sharma further referred to the Apex Court judgment in the case of K. Krlshnamacharyulu and others v. Sri Venkateswara Hindu College of Engineering and another, 1997(3) SCC 571 , in support of his contention that writ petition against order of suspension passed by respondent No. 3 is maintainable. 7. Having considered the above submission, however, we are not persuaded to accept the same. It is not disputed that Sri Ram Educational Trust is a private body which has established a technical institution in the year 2001 for imparting the technical education. In order to give status and authority to the certificates and degrees which the students of private educational institution would be entitled, the provisions for affiliation and recognition have been made and the aforesaid institution is affiliated to U.P. Technical University, Lucknow for the said purpose. Mere affiliation with the U.P. Technical University would not make institution itself either an instrumentality or agency of the University or that of the State Government. Learned Counsel for the petitioner could not place any provisions under the U.P. Technical University Act 2000 which provides that the Rules and Regulations of the affiliated colleges pertaining to the condition of service of their employees would have statutory force. Learned Counsel for the petitioner could not place any provisions under the U.P. Technical University Act 2000 which provides that the Rules and Regulations of the affiliated colleges pertaining to the condition of service of their employees would have statutory force. The question as to whether the education is a fundamental right as observed in the Mohini Jain (Supra) case came up for consideration again before the constitution Bench of the Apex Court in Unnikrishnan v. State of A.P., 1997(1) SCC 645, and it clarified that education to the students which are up to the age of 14 years is a fundamental right under Article 21 of the Constitution of India. The observation of the Apex Court in Mohini Jain case were explained by confining it to only primary education and has not been extended to higher and technical education This has been confirmed by a larger Bench in T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., 2002(5) ESC 1 (SC) and P.A. Inamdar v. State of Mahrashtra, 2005(3) ESC 373 (SC). (Para 13) 8. Be that as it may it does not mean that the institutions which are imparting such education even if they are unaided and are not being run by the State would become “State” within the meaning of Article 12 of the Constitution of India. The petitioner in the case in hand has been appointed by the Director of the Institution. Admittedly neither the governing body of the institution nor the Director is a statutory body or authority. A Full Bench of this Court in Aley Ahmad Abidi v. D.I.O.S., AIR 1977 Alld. 539, held as under : “The committee of Management of a intermediate college is not a statutory body. Nevertheless the writ petition filed against it is maintainable if such petitioner is for enforcement of performance of any legal obligation or duty imposed on such committee by a statute.” 9. The institute may be recognized but it is neither statutory body nor a state within the meaning of Article 12. Nevertheless the writ petition filed against it is maintainable if such petitioner is for enforcement of performance of any legal obligation or duty imposed on such committee by a statute.” 9. The institute may be recognized but it is neither statutory body nor a state within the meaning of Article 12. The management or the Director of the institution is neither to act in a particular manner under any statutory provision nor any such provision has been brought to the notice of this Court to show that the respondents is under a legal obligation and a duty is imposed by the statute to act in a particular manner while dealing with its employees. At the best the rules and regulations governing the conditions of service of the employees of the Institution can be placed at par with the status of bye laws of a society registered under the Societies Registration Act or the Articles of Association or Memorandum of Association of a company registered under the Companies Act. The said bye laws are neither statutory nor have force of law violation whereof, can be assailed in a writ petition under Article 226 of the Constitution of India. (See Cooperative Central Bank Limited v. Addl. Industrial Tribunal, AIR 1970 SC 245 (para 10) and B.K. Garad v. Nasik Merchant Cooperative Bank, AIR 1984 SC 192 (para 15). 10. The judgment cited by learned Counsel for the petitioner in K. Krishnamacharyulu (Supra) also lends no support to his case in as much as the petitioners in the said case were working as Lab Assistant and claimed pay scale on the basis of the government orders issued in this respect. The Apex Court held that the aforesaid government orders, have statutory force. The judgment pertains to payment of salary pursuant to government orders having statutory force but not for specific performance of a contract of personal service. The aforesaid judgment therefore, does not apply to the facts of the case in hand. The relief of specific performance of a contract of personal service can not be asked by invoking extra ordinary constitutional remedy under Article 226 of the Constitution of India as held in the case of U.P. State Ware Housing Corporation v. C.K. Tyagi, AIR 1970 SC 1244 (paras 23 and 31). The relief of specific performance of a contract of personal service can not be asked by invoking extra ordinary constitutional remedy under Article 226 of the Constitution of India as held in the case of U.P. State Ware Housing Corporation v. C.K. Tyagi, AIR 1970 SC 1244 (paras 23 and 31). The same view has been followed by the Apex Court in Executive Committee Vaish Degree College v. State of U.P., AIR 1976 SC 888 (paras 9, 10, 13 and 17) ; Smt. J. Tiwari v. Smt. Jwala Devi, AIR 1981 SC 122 (paras 4 and 5) and in Pear Light Liners Private Limited v. Manorama, 2004(3) SCC 172 (para 7). 11. Considering the status of certified standing orders under the Industrial Employment Standing Order Act, the Apex Court held the same to be non statutory in Rajsthan State Road Transport Corporation v. Krishna Kant, AIR 1995 SC 1715 (paras 12 and 17). In the case of U.P. State Bridge Corporation v. U.P. Rajya Setu Nigam Karamchari Sangh, 2004 (4) SCC 268 (Para Bound 14) , a person challenged dismissal being in violation of certified standing order and the Apex Court held that the writ petition is not maintainable. This aspect has also been considered recently by a Full Bench of this Court in M.K. Gandhi and others v. D.I.O.S. and others, 2005(4) ESC 2265 (FB) and in para 54 of the judgment the Full Bench held as under : “54. The K. Krishnamacharyalu case or the Anadi Trust case or the Pai Foundation case or the Central Corporation cases are not authority for the proposition that : The privately managed schools are State within the meaning of Article 12 of the Constitution; or In absence of any statutory obligation, a writ petition or a suit is maintainable for specific performance of a contract of personal services. The Aley Abidi case is still good law.....” 12. In the light of the aforesaid legal principles unless it can be shown that the impugned order of suspension is violative of some statutory provision, writ petition against the order of suspension passed by an authority of a privately managed educational institution though recocgnized by U.P. Technical University would not lie. In view of the aforesaid discussion, this writ petition therefore, is dismissed in limine as not maintainable. No order as to costs. Petition Dismissed. ———