Research › Search › Judgment

Meghalaya High Court · body

2016 DIGILAW 25 (MEG)

Lal Singh v. Union of India

2016-09-08

VED PRAKASH VAISH

body2016
JUDGMENT : V.P. Vaish, J. These four writ petitions have been filed by the petitioners seeking mandamus against the respondents directing them to withdraw/recall or otherwise forbear from giving effect to the Office Memos dated 09.06.2014 issued by respondent No. 4. The petitioners also pray for quashing of the said Office Memo dated 09.06.2014 and for directions to the respondents not to disturb the services of the petitioners. 2. Since all these four petitions involve similar question of law, all the petitions are being disposed of by this common Judgment/Order. 3. For the sake of brevity, the facts are being taken from WP(C) No. 201 of 2014. The petitioner was initially appointed as Tailor (Grade-IV) on probation for a period of one year in the Assam Rifles Public School in the pay scale of Rs. 670-20-EB-770-25-895-EB-30-1045. The petitioner joined service on 01.07.1987 and after completion of probation period, the petitioner was confirmed in the said post w.e.f. 1st July, 1988. 4. The petitioner was relinquished from service vide Office Memo dated 9th June, 2014 as per the directives of the Governing Body, Assam Rifles Public School and Chapter-V of the Terms and Conditions of Service of the Assam Rifles Public School Rule Book. The said Office Memo dated 09.06.2014 is challenged by way of the present petition. 5. The petitioner challenged the relinquishment by contending that the exercise of powers by the respondent No. 4 under Clause 5.25 of Chapter-V of the Assam Rifles Public School Rule Book without citing any reason is illegal, arbitrary, discriminatory and violative of Article-311 (2) of the Constitution of India. 6. Mr. HS Thangkhiew, learned senior counsel for the petitioner argued that the petitioner served on the post of Tailor for about 27 years on permanent basis and the relinquishment of the petitioner by giving three months' notice is violative of Article-39(a) and Article-41 of the Constitution of India. Learned senior counsel for the petitioner also contended that the respondent No. 4 exercised powers illegally and arbitrarily inasmuch as the same is also violative of audi alteram partem rule of natural justice. 7. The petition is opposed by the respondents and affidavit-in-opposition has been filed. 8. At the outset, Mr. Learned senior counsel for the petitioner also contended that the respondent No. 4 exercised powers illegally and arbitrarily inasmuch as the same is also violative of audi alteram partem rule of natural justice. 7. The petition is opposed by the respondents and affidavit-in-opposition has been filed. 8. At the outset, Mr. K. Paul, learned counsel for the respondents took a preliminary objection that the writ petition under Article-226 of the Constitution of India is not maintainable as the petitioner was an employee of a private institution and his service conditions are governed by rules and regulations of the Society as such the same cannot be enforced through the writ jurisdiction. It is stated that the respondent School is neither a limb of Assam Rifles nor the Union of India through the Ministry of Home Affairs, but a Society registered under the Societies Registration Act, 1860. The respondent School is thus not a State or an instrumentality of State as envisaged under Article-12 of the Constitution of India. It is further stated that the School does not receive any grant or subsidy from Assam Rifles or from any other Government. 9. It is further contended by learned counsel for the respondents that the petitioner was served with a notice for relinquishment of the post in pursuance of Rule 5.25 of Chapter-V of the Assam Rifles Public School Rules, which provides that the school authority may by giving three months' notice in writing or three months' pay and allowances in lieu of such notice, may retire an employee on attainment of 50 years of age or completion of 25 years of service whichever is earlier. 10. The specific contention of the respondents is that the School is un-aided school and the petitioner is not entitled to seek intervention of this Court under Article-226 of the Constitution of India. It is further contended that the relief’s sought for will fall within the jurisdiction of a competent civil court. 11. I have given anxious consideration to the submissions made by learned counsel for both the parties and also perused materials available on record. 12. It is further contended that the relief’s sought for will fall within the jurisdiction of a competent civil court. 11. I have given anxious consideration to the submissions made by learned counsel for both the parties and also perused materials available on record. 12. Since the question of maintainability of the writ petition has been raised, I am of the view that the said question has to be addressed at the threshold itself, since consideration on the merit of the other contentions based on the rules and regulations of the Society would be dependent on the answer to the primary question of maintainability itself. 13. Learned senior counsel for the petitioners contended that the respondent School is affiliated to Central Board of School Education (CBSE) and is under the deep and pervasive control of the Assam Rifles, financially and administratively. It is further contended that the respondent School is amenable to the writ jurisdiction as the funding of the institution, provision of land for school building, payment of salaries of the employees, teaching and non-teaching are made by the Assam Rifles through grants, subsidy etc which makes it an instrumentality of the State. In support of his submissions he has relied upon the Judgments in the cases; "T.M.A. Pai Foundation and Others v. State of Karnataka (2002) 8 SCC 481 , Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others v. V.R. Rudani and Others (1989) 2 SCC 691 and Makamni Kengoo and Ors. v. Union of India and Ors. (2014) 2 NEJ 588 (Gau.)." 14. On the other hand, Mr. K. Paul, learned counsel for the respondents vehemently argued that the respondent school is an un-aided private School. The respondent is a Society registered under the Societies Registration Act which is not a limb of Assam Riles and does not come under the Union of India through the Ministry of Home Affairs much less the respondent school does not receive any grant or subsidy from the Assam Rifles or any other Government. 15. Learned counsel for respondents also submitted that an additional affidavit dated 08.09.2014 of Dr. 15. Learned counsel for respondents also submitted that an additional affidavit dated 08.09.2014 of Dr. Diganta Haldar, Principal, Assam Rifles Public School was filed wherein it has been specifically mentioned that the land and the other infrastructural facilities made available by the Assam Rifles is purely a welfare measure, since the school has been established to provide decent schooling to the children of the men and officers of the Assam Rifles who are deployed to combat the insurgency activities in the far flung areas of the Northeast and also for the children of the civilian where good schooling is not available. It is also stated in the said affidavit that the officers of the Assam Rifles who are in the Governing Body of the school are not their official capacity but being a responsible citizen of the country and that the school is located within the Assam Rifles Complex and as such the inclusion of the officers of the Assam Rifles in the Managing Committee cannot be construed to have elevated the school as an instrumentality of the State under Article 12 of the Constitution. 16. Learned counsel for the respondents also pointed out that in a writ petition titled as Shri Hemant Kumar Singh and 73 others v. Union of India and others bearing WP(C) No. 100 of 2016, the respondent No. 1, Union of India filed an affidavit of Maj Sujata Chaudhary. All the four petitioners were parties in the said writ petition. A copy of the said affidavit has been placed on record and a copy thereof has been supplied to learned counsel for the petitioners. Para-4 of the said affidavit reads as under: "That the Assam Rifles Public School is registered under the Society Registration Act, 1860 and purely a private run institution, and not an instrumentality of the "STATE" within the meaning of the Article 12 of the Constitution of India. Moreover, it is worthy to mention here that the finances/funds of the society are not aided/controlled by the Centre/State. The Union of India (i.e. Ministry of Home Affairs) in no way is related to the operation/functional aspects of the said society. Hence, the Union of India ought to have not been a necessary party in the instant wit petition." 17. Moreover, it is worthy to mention here that the finances/funds of the society are not aided/controlled by the Centre/State. The Union of India (i.e. Ministry of Home Affairs) in no way is related to the operation/functional aspects of the said society. Hence, the Union of India ought to have not been a necessary party in the instant wit petition." 17. The Hon'ble Supreme Court in the case of 'Binny Ltd. and Another v. V. Sadassivan and Others, (2005) 6 SCC 657 ' after considering the judicial precedents and various other authors of eminence held that a writ of mandamus can be issued against a private body which is not "State" within the meaning of Article-12 of the Constitution of India, if there is public law element. However, the Supreme Court laid down that the High Court cannot exercise judicial review of the action challenged by a party under Article-226 of the Constitution of India to enforce private contracts entered into between the parties. While noticing that the Government or other authorities under them are increasingly employing contractual techniques at all levels to achieve their regulatory aims, the Hon'ble Supreme Court nevertheless took the view that the exercise of those powers is not free from the zone of judicial review and that there would be no limits to the exercise of such powers. But the court cautioned that in normal circumstances "judicial review principles cannot be used to enforce contractual obligations". The Court further held as under: "When contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably." While reversing the judgment of the High Court, the Supreme Court found the decision of the employer to terminate the service of their employees in the two cases could not be said to have had any element of public policy since their cases were governed by the contract of employment entered into between employees and the employer. Their Lordships concluded that in contractual matters even in respect of public body, principles of judicial review have got limited application, relying on the decisions of the Apex Court in the case of 'State of U.P. and Others v. Bridge & Roof Company (India) Ltd.' reported as (1996) 6 SCC 22 and in the case of 'Kerala State Electricity Board and Another v. Kurien E. Kalathil and Others' reported as (2000) 6 SCC 293 . 18. The petitioners admittedly are the employees of the School and their services are governed by the rules and regulations of the Society. The respondent School in exercise of powers under the rules and regulations of the Society relinquished the services of the petitioners, where I do not feel not public element is involved. Even if it is assumed that the School is pardoning public duty, the act complained of must have direct nexus with the discharge of public duty. It is undisputedly a public law action which confers a right upon the aggrieved to invoke extra ordinary writ jurisdiction under Article-226 of the Constitution for a prerogative right. Individual wrongs or breach of mutual contracts without any public element as its integral cannot be rectified through Article-226 of the Constitution of India. There is no public element in the action complained in the present writ petition. Wherever Courts have the intervened in exercise of jurisdiction under Article-226 of the Constitution of India, either the service conditions were regulated by statutory provisions or the employer had the status of State within the expansive definition under Article-12 of the Constitution or it was found that the action complained of has public element. 19. Further, the Supreme Court in the case of 'Satimbla Sharma and Others v. S.T. Paul's Senior Secondary School and Others', (2011) 13 SCC 760 held as under: "16. In our considered opinion, the Division Bench of the High Court has rightly held in the impugned judgment that the teachers of private unaided minority schools had no right to claim salary equal to that of their counterparts working in Government schools and government-aided schools. The teachers of Government schools are paid out of the Government funds and the teachers of Government aided schools are paid mostly out of the Government funds, whereas the teaches of private unaided minority schools are paid out of the fees and other resources of the private schools. 17. The teachers of Government schools are paid out of the Government funds and the teachers of Government aided schools are paid mostly out of the Government funds, whereas the teaches of private unaided minority schools are paid out of the fees and other resources of the private schools. 17. Moreover, unaided private minority schools over which the Government has no administrative control because of their autonomy under Article 30(1) of the Constitution. As the right to equality under Article 14 of the Constitution is available under the State, it cannot be claimed against unaided private minority schools. Similarly, such unaided private schools are not State within the meaning of Article 36 read with Article 12 of the Constitution and as the obligation to ensure equal pay for equal work in Article 39(d) is on the State, a private unaided minority school is not under any duty to ensure equal pay for equal work." 20. In the case of 'Sushmita Basu and Others v. Ballygunge Siksha Samity and Others', (2006) 7 SCC 680 , the teachers of a recognised private school known as Ballygunge Siksha Sadan in Calcutta filed a writ petition in the High Court of Calcutta praying for issuance of writ of mandamus directing the authorities of the school to fix the salary of teaching and non-teaching staff of the school and to remove all anomalies in the scales of pay as recommended by the 3rd Pay Commission as extended to the other Government aided schools and Government schools and the Hon'ble Supreme Court held that in the absence of statutory provision no such direction can be issued by the High Court under Article-226 of the Constitution of India. Where a statutory provision casts a duty on a private un-aided school to pay the same salary and allowances to its teachers as being paid to the teachers of Government aided Schools, then a writ of mandamus to the School could be issued to enforce such statutory duty. But in the present case, there was no statutory provision requiring a private un-aided school to pay to its teachers the same salary and allowances as were payable to teachers of Government Schools and therefore, a mandamus could not be issued to pay to the teachers of private recognised un-aided schools the same salary and allowances as were payable to Government Institutions. 21. 21. It is a settle proposition of law that the non-aided Private Educational Institutions do not come within the definition 'Instrumentality of State' and therefore Writ Petition against the same is not maintainable invoking Article-226 of the Constitution of India to enforce the terms of contract of personal service entered with a private school. 22. In anther case 'M.K. Gandhi and Ors. v. Director of Education (Secondary) and Ors.' Reported as 2005 (4) ESC 2265 (All), a Full Bench of Allahabad High Court had held that the bye-laws of Central Board of Secondary Education is not having statutory force and that a writ petition is not maintainable against an Un-aided recognised School. 23. The Judgments relied upon by learned senior counsel for the petitioners are of no help to the petitioners. The T.M.A. Pai Foundation's case (supra) was on the question relating to scope and right of the minorities to establish and administer educational institutions under Article-29(2) and 30(1) of the Constitution of India. The same was referred to eleven judges' bench and eleven questions were framed. Some of the questions were answered by the eleven judges' bench and some were left to be decided by the regular bench. The question as to whether the un-aided schools are State within the meaning of Article-12 of the Constitution of India was not in issue in the said case. 24. In Andi Mukta Sadguru's case (Supra) the dispute regarding pay scales arose between the teachers and the management which was referred to the Chancellor. The Chancellor gave the award in favour of the teachers and the said award was accepted by the State Government. The management refused to pay higher pay scale and closed down the school. Thereafter, the teachers filed a writ petition for the salary of the period taught by them and post retirement benefit for the period they had worked. The said writ petition was for payment of salary for the services already rendered. In the light of the fact that there were statutory rules, regulations and statutory order in favour of the petitioners, the Hon'ble Supreme Court held that the writ petition to be maintainable. The same is clear from the following observation of the Hon'ble Supreme Court: "There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. The same is clear from the following observation of the Hon'ble Supreme Court: "There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and arrears of salary payable to them. The question is whether the trust can be compelled to pay by a writ of mandamus?" 25. In Makanmi Kengoo's case (Supra) the post of the Principal of the School was filled up by open advertisement in 2001 with the pay scale fixed in accordance with the recommendations of the 5th Pay Commission. The pay scale and allowances admissible under the 6th Central Pay Commission (CPC) were implemented in favour of Civilian Government employees of Central Government and the employees of Kendriya Vidyalaya Sangathan (KVS) and Jawahar Navodaya Vidyalaya (JNV) w.e.f. 01.01.2006 but the pay scales of 6th CPC were granted to the appellants/petitioners only w.e.f. 01st April, 2008. Similarly, the dearness allowances were also paid to the appellants on par with Central Government Civilian employees only up to June, 2009, but the same was kept in abeyance since then the appellants were being given less dearness allowance due to non-implementation of the same as per the Central Government announcement from time to time. The appellants submitted representations to the respondents to pay the pay and allowances and other benefits as per recommendations of the 6th CPC as enjoyed by similarly situated employees of the Central Government and KVS as well as JNV, but to no avail. In this background the writ petition was filed which was dismissed by learned Single Judge. The appeal filed by petitioners was allowed and the respondent authorities were directed to implement the pay and allowances in terms of 6th CPC to the teaching and non-teaching Staff of the School w.e.f. 01.01.2006 together with the increased Dearness Allowances w.e.f. July, 2009 and the arrears payable in connection therewith and extend the service benefits including retirement benefits at part with the employees of Kendriya Vidyalaya Sangathan and Jawahar Navodaya Vidyalaya with arrears and implement the applicable Assured Career Progression (ACP) and SDA to them without further delay. There was already recommendations of the Sixth Central Pay Commission in favour of the employees and was implemented qua Civilian Government employees of Central Government and the employees of KVS and JNV. It is in this light the Division Bench held that the Writ Petition to be maintainable. In the present case, the service of the petitioner was relinquished in terms of the rules and regulations of the Society. The same has no nexus with the discharge of public duty. 26. Having regard to the peculiar facts and circumstances available on record I am satisfied that the discretionary jurisdiction vested in this Court under Article-226 of the Constitution of India need not be exercised in the present case. It is settled principle of law that if the rights are purely of a private character no mandamus can be issued. I have no hesitation to hold that the petitioners cannot seek to enforce their rights, if any, through the intervention of this Court under Article-226 of the Constitution of India. 27. In view of the submissions made by learned counsels appearing on behalf of the petitioners as well as the respondents and on a perusal of the records available and on considering the decisions cited herein above, I am of the considered view that the relief sought by the petitioners, in the present writ petition, cannot be granted by this Court in exercise of powers conferred under Article-226 of the Constitution of India. 28. I refrain from commenting upon the merits of the controversy lest it may prejudice the case of the parties. However, petitioners are at liberty to take recourse to any other remedy available to them in accordance with law. 29. In view of the aforesaid discussion, the present writ petitions deserve to be dismissed and the same are hereby dismissed. No order as to costs. MC(WPC) No. 164 of 2014 in 201 of 2014. MC(WPC) No. 165 of 2014 in 202 of 2014. MC(WPC) No. 166 of 2014 in 203 of 2014. MC(WPC) No. 167 of 2014 in 204 of 2014. The applications are dismissed as in fructuous.