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2009 DIGILAW 1052 (MP)

Sunil Kumar Saxena v. Holy Cross Ashram Higher Secondary School, Datia

2009-08-27

A.P.SHRIVASTAVA, SUBHASH SAMVATSAR

body2009
JUDGMENT Samvatsar, J. -- 1. This writ appeal is filed by the petitioner assailing order dated 25.2.2009 passed by learned Single Judge of this Court in Writ Petition No.2837/08(S) whereby the writ petition filed by the present appellant stood dismissed on the ground that the writ petition was not maintainable. 2. Brief facts of the case are that the appellant approached this Court stating that he was appointed as a direct recruit with respondent No.1 Holy Cross Ashram Higher Secondary School, Datia as a Lecturer (Chemistry) on 1.2.2005 and since then he was imparting education to the students of Classes X to XII. It is alleged that the respondent school is affiliated to Board of Secondary Education, Madhya Pradesh, Bhopal and is governed by the provisions of Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965. On 4.2.2008, the appellant applied to the respondent No.1 institution for grant of experience certificate. The respondent institution issued a certificate showing the designation of the appellant as Assistant Teacher (Science) on 6.2.2008. Appellant protested against the same on which the petitioner was orally asked to resign and his services were dispensed with by an oral order. Hence, he approached this Court by filing a writ petition under Article 226/227 of the Constitution. 3. Respondent institution, on notice in the writ petition, filed its short reply raising a plea that the respondent school is an unaided institution and is, therefore, not amenable to writ jurisdiction under Article 226 of the Constitution. It was contended by the respondent that the respondent institution is a minority institution and does not fall within the definition of the "State" as defined in Article 12 of the Constitution of India. 4. The learned writ Court held that unaided educational institutions are amenable to writ jurisdiction of this Court only if element of public law is involved, hence, the writ petition filed by the petitioner is not maintainable. The learned writ Court, therefore, dismissed the writ petition. Hence, this appeal. 5. Shri VK. Bharadwaj, learned senior advocate with Shri Anand Bharadwaj, appearing on behalf of the appellant, contended that the learned writ Court has committed error in holding respondent institution is not a "State" within the meaning of Article 12 of the Constitution of India. He contended that the respondent is governed by statutory rules namely Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965 (hereinafter referred to as "Adhiniyam"). He contended that the respondent is governed by statutory rules namely Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965 (hereinafter referred to as "Adhiniyam"). He invited attention of this Court to section 28(2)(d) of the Adhiniyam which gives powers to the Board to make regulations. Board is defined in 2(a) of the Adhiniyam and· means the Board of Secondary Education established under section 3. Clause (d) of section 28(2) of the Adhiniyam gives powers to the Board to make regulations imposing conditions of recognition of institutions for purposes of admission to the privileges of the Board, the qualification and condition of service of teachers and framing of a School Code to ensure a minimum standard of efficient and uniform management of such institutions. Thus, according to Shri Bharadwaj, it is the statutory duty of the Board of Secondary Education to lay down qualifications and conditions of service of teachers and frame a School Code to ensure minimum standard of education. 6. Counsel for the appellant has also invited attention of this Court to Regulations 70, 71 and 78 framed under the Adhiniyam. Regulation 70 framed under the Adhiniyam provides that the Regulations shall apply to all non-Government educational institutions. Regulation 71 provides for service conditions of all Principals, Headmasters, Lecturers, and Teachers, except those appointed temporarily for a period of less than one year. Regulation 78 provides that managing committee of the institution shall not terminate the service or reduce the pay of any teacher or lecturer appointed on a written contract without holding a full enquiry into the charges against him. 7. Thus, according to Shri Bharadwaj under this regulation, services of the present appellant cannot be terminated and his services are protected by virtue of Regulation 78. He contended that as there are statutory rules governing the service conditions of the appellant which are applicable to the respondent institution it cannot be said that the respondent institution is not covered by Article 12 of the Constitution of India. 8. To support the contention, learned counsel for the appellant placed reliance on a decision of the apex Court in the case of Vidya Dhar Pandey v. Vidyut Grij Siksha Samiti and others [ AIR 1989 SC 341 ]. In that case, the institution was held to be amenable to writ jurisdiction of the High Court under Article 226/227 of the Constitution of India. In that case, the institution was held to be amenable to writ jurisdiction of the High Court under Article 226/227 of the Constitution of India. However, from perusal of the said judgment, it appears that in that case, the school was 100 percent aided by the State Government while in the case in hand, the respondent institution is not receiving any aid. Therefore, aforesaid judgment is quite distinguishable on that ground. 9. Another judgment relied upon by the learned counsel for the appellant is Neeti Bhan v. Miss Hill Education Society, Lashkar [ 1999(1) MPLJ 23 ]. In that case, this Court entered the writ petition by holding that the teachers appointed in an unaided recognized school are entitled to statutory protection in regard to security of tenure; such teachers cannot arbitrarily be subjected to rule of "hire and fire". In the aforesaid judgment, of course, Single Bench of this Court has held that teachers of an unaided recognised school are entitled to protection and the said institution is amenable to writ jurisdiction. 10. Next judgment relied upon by the learned counsel for the appellant in Indra Pal Gupta v. The Managing Committee. Model Inter College, Thora [ AIR 1984 SC 1110 ]. From perusal of the facts of the said case, it is not clear whether the institution i.e. Model Inter College was an aided institution or not or was a private institution and the question about maintainability of the writ petition against unaided institution was not considered by the apex Court in that case. 11. Learned counsel for the appellant then relied upon an unreported Division Bench decision of this Court in the case of The Teresion Carmel Education Society v. Shrimati Nirmala Gangajaliwale [Writ Appeal No.167 of 2006, decided on 15.5.2008 at Gwalior]. In that case, the Division Bench has held that an unaided institution is amenable to writ jurisdiction of the High Court relying upon apex Court judgment in the case of K. Krishnamacharyulu v. Sir Venkateshwara Hindu College of Engineering and another [ (1997)3 SCC 571 ], by holding that element of public duty is present in retiring a teacher at the age of 58 years when the age of retirement of a teacher is 60 years. Special Leave Petition (Civil) No.20 17120418 was preferred by the institution against the judgment of this Court, which stood dismissed by the apex Court vide order dated 29.8.2008 leaving the question, whether writ was maintainable against an unaided institution not receiving grant-in-aid, open. 12. In another unreported decision of this Court in the case of Sandeep Kumar Mishra v. State of M.P. [Writ Petition No.1 176/04(S) decided on 6.9.2007 at Gwalior], Single Bench of this Court had entertained a writ petition filed by the employee challenging his termination order in view of the provisions of Madhya Pradesh, Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978. Having perused the facts of that case, it is clear that in that case, the institution was getting grant-in-aid from the State Government and, therefore, the provisions of the Adhiniyam were applicable. Said Adhiniyam applies only to aided institutions. 13. Another judgment relied upon by the learned counsel for the appellant is in the case of TMA Pai Foundation v. State of Karnataka [ AIR 2003 SC 355 ]. In para 64 of the aforesaid judgment, the apex Court has laid down that a teacher or member of staff of an educational institution should go to civil Court for the purpose of seeking redressal is not in the interest of general education. The dispute between the management and the staff of educational institution must be decided speedily and without the excessive incurring of costs. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State. Thus, in the aforesaid judgment, the apex Court was not considering the case where a terminated employee has approached the High Court for setting aside his termination order. 14. Replying to the arguments raised by the learned senior advocate for the appellant, Shri K.N. Gupta, learned senior advocate appearing for the respondent institution has contended that the respondent institution is a minority institution and has protection under Article 30 of the Constitution of India which provides that a minority institution has right to establish and administer educational institutions of their choice. He contended that since the minority institutions have choice of establishing institutions, therefore, rules framed by the State Government are not applicable. 15. He contended that since the minority institutions have choice of establishing institutions, therefore, rules framed by the State Government are not applicable. 15. The argument raised by the learned counsel for the respondent institution cannot be accepted because the law is framed by the State Government that Adhiniyam of 1965 applies to all school imparting secondary deducation. Under Article 30 of the Constitution only protection which is provided to a minority institution is that their status shall not be affected and they have right to establish and administer educational institutions of their choice. However, it does not mean that they are not bound by any law and they are free to adopt the policy of "hire and fire". Minority institutions cannot violate the provisions of Articles 14 and 16 of the Constitution of India. They cannot be permitted to act arbitrarily in any manner. 16. Learned senior advocate for the respondent institution then relied upon a decision of the apex Court in the case of P.A. Inamdar v. State of Maharashtra [ AIR 2005 SC 3226 ]. In paragraph 94 of the said judgment, the apex Court has held that the right to establish an educational institution for charity or for profit, being an occupation, is protected by Article 19(1)(g) of the Constitution, notwithstanding the fact that the right of a minority to establish and administer an educational institution would be protected by Article 19(1)(g), yet the Founding Father of the Constitution felt the need of enacting Article 30. The reasons are too obvious to require elaboration. Article 30(1) is intended to instill confindence in minorities against any executive or legislative encroachment on their right to establish and administer educational institution of their choice. Article 30(1) though styled as a right, is more in the nature of protection for minorities. But for Article 30 an educational institution even though based on religion or language, could have been controlled or regulated by law enacted under clause (6) of Article 19, and so, Article 30 was enacted as a guarantee to the minorities that so far as the religious or linguistic minorities are concerned, educational institutions of their choice will enjoy protection from such legislation. However, such institutions cannot be discriminated against by the State solely on account of their being minority institutions. However, such institutions cannot be discriminated against by the State solely on account of their being minority institutions. The minorities being numerically less qua non minorities, may not be able to protect their religion or language and such cultural values and their educational institutions will be protected under Article 30. Thus, as ' per the aforesaid judgment, the object of Article 30 of the Constitution is to give protection to minority institutions to protect their religion, language and culture. In paragraph 106 of the said judgment, the apex Court has further held that the State may prescribe reasonable regulations to ensure the excellence of the educational institutions to be granted aid or to be recognised. To wit, it is open to the State to lay down conditions for recognition such as, an institution must have a particular amount of funds or properties or number of students or standard of education and so on. 17. Thus, the judgment in the case of P.A. Inamdar (supra), lays down that the State Government is free to frame regulations for controlling the educational institutions run by minorities. 18. In the case of Sushmita Basu v. Ballygunge Shiksha Samity and others [ (2006)7 SCC 680 ], the apex Court has laid down that writ petition will not lie against unaided institutions for implementing the recommendations of pay commission with retrospective effect in absence of any statutory provisions directing private unaided institutions to implement the recommendations. In judicial review, the High Court cannot direct a private school, recognized and unaided, to implement the recommendations of the pay commission. Thus, the judgment in the case of Sushmita Basu is quite distinguishable. 19. In the case of K. Krishnamacharyulu and others v. Sri Venkateshwara Hindu College of Engineering and another [ (1997)3 SCC 571 ], the apex Court has held that writ petition against an unaided private institution is maintainable. In that case, the apex Court has held that if element of public interest is involved then writ petition against private educational institution can be heard. 20. In the case of Zee Telefilms Ltd. v. Union of India and others [ (2005)4 SCC 649 ], the apex Court was examining the question whether Cricket Control Board is a "State" within the meaning of Article 12. Hence, the said judgment is also distinguishable on facts. 21. 20. In the case of Zee Telefilms Ltd. v. Union of India and others [ (2005)4 SCC 649 ], the apex Court was examining the question whether Cricket Control Board is a "State" within the meaning of Article 12. Hence, the said judgment is also distinguishable on facts. 21. The last judgment relied upon by the learned counsel for the appellant is S.K. Varshney v. Principal, Our Lady of Fatima H.S.S. and others [Civil Appal No.8783/03 decided on 19th July, 2007]. In that case, a writ petition was filed against termination of an employee. Writ petition filed by the employee was dismissed by the High Court holding that no writ would lie against unaided private institution as also that no element of public law is involved in the matter. 22. Thus, the law laid down by the apex Court in the cases of K. Krishnamacharyulu, Sushmita Basu and S.K. Varshney (supra), is that writ petition against an unaided educational institution is maintainable provided that element of public law is involved. The apex Court in the case of S.K. Varshney (supra), has laid down that in case of termination, no public law is involved as the grievance of the petitioner is personal in nature. 23. In such circumstances, we hold that no writ petition is maintainable against an unaided educational institution; same will lie if element of public law is involved. In a case of termination of an employee the grievance is personal in nature and therefore, element of public law is not involved. 24. Contention of Shri Bharadwaj, learned senior advocate for the appellant that there are statutory rules, i.e., the Adhiniyam and Regulations framed thereunder and its violation is concerned, this ground also is of no help to the appellant because mere violation of rules by any citizen or person will not include him in the definition of Article 12 of the Constitution of India. If a person violates any particular law, it will not mean that he will be amenable to writ jurisdiction under Article 226/227 of the Constitution of India. 25. Hence, the learned writ Court has rightly dismissed the writ petition which does not call for any interference in this writ appeal. 26. Resultantly, writ appeal has no merit and is dismissed.