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Allahabad High Court · body

2018 DIGILAW 2009 (ALL)

ROYCHAN ABRAHAM v. STATE OF U. P.

2018-09-17

B.AMIT STHALEKAR

body2018
JUDGMENT Hon’ble B. Amit Sthalekar, J.—Heard Shri Sudhir Srivastava holding brief of Shri Ravi Chandra Srivastava, learned counsel for the petitioner, learned standing counsel for the respondent No. 1 and Shri J. Nagar, learned senior counsel assisted by Shri Pratik J. Nagar for the respondent No. 4. 2. The petitioner in the writ petition is seeking quashing of the order of termination dated 7.3.2014 passed by the Secretary, Saint Francis School, Shamli-respondent No. 3. The order of termination mentions that his services are being terminated as he has been found guilty of moral turpitude in a domestic enquiry. 3. In para 3 of the writ petition, it is stated that the Saint Francis School i.e. the school in question is a Christian Minority Institution founded and run by Shamli Franciscan Education Society which is a religious and charitable organization registered under the Societies Registration Act, 1860. Annexure-3 to the writ petition is a document which shows the Saint Francis School to be affiliated to the Council for the Indian School Certification Examinations, New Delhi. 4. A preliminary objection has been raised by Shri J. Nagar, learned Senior Counsel that the writ petition is not maintainable in the High Court in view of the Full Bench decision of this Court in the case of M.K. Gandhi and others v. Director of Education (Secondary) U.P. and others, 2005(3) ESC 2265 (All)(FB). 5. Earlier on the same objection the writ petition was dismissed by a learned Single Judge of this Court by order dated 27.11.2014. Against which the petitioner filed a Special Appeal No. 323 of 2015 (Roychan Abraham v. State of U.P. and others), which was disposed of by the Division Bench hearing the special appeal by its judgment dated 27.4.2015 and the order of the learned Single Judge was set aside and the issue with regard to maintainability of the writ petition was kept open for a fresh decision by the learned Single Judge. 6. The petitioner is assailing the order dated 7.3.2014 whereby his services have been terminated by the Respondent No. 3 who is the Secretary of the St. Francis School, Shamli. 7. 6. The petitioner is assailing the order dated 7.3.2014 whereby his services have been terminated by the Respondent No. 3 who is the Secretary of the St. Francis School, Shamli. 7. The learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in Ramesh Ahluwalia v. State of Punjab and others, (2012) 12 SCC 331, wherein also the matter related to a private school, namely, the DAV Public School, Lawrence Road, Amritsar and on a complaint made by one lady official, the appellant therein, who was working as an Administrative Officer was downgraded and transferred to another school to work as Assistant. The case of the appellant therein was he had been issued a warning letter by the Principal Smt. Neera Sharma and that Smt. Neera Sharma had appeared before the Enquiry Officer as Management Witness No. 2. One of the objections raised before the High Court was that the writ petition filed by the appellant before the High Court was not maintainable. The High Court dismissed the writ petition on the ground that the concerned school being an unaided and private school managed by a Society is not an instrumentality of the State and that the appellant had the alternative remedy to approach the Civil Court. The Letters Patent Appeal preferred by the appellant was also dismissed. The Supreme Court relying on the view taken by it in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jyanti Mahotsav Smarak Trust and others v. V.R. Rudani and others, (1989) 2 SCC 691 , in paragraphs 12, 13 and 14 has held as under : “12. We have considered the submissions made by the learned counsel for the parties. In our opinion, in view of the judgment rendered by this Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691 , there can be no doubt that even a purely private body, where the State has no control over its internal affairs, would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution, for issuance of a writ of mandamus. Provided, of course, the private body is performing public functions which are normally expected to be performed by the State Authorities. 13. Provided, of course, the private body is performing public functions which are normally expected to be performed by the State Authorities. 13. In the aforesaid case, this Court was also considering a situation where the services of a Lecturer had been terminated who was working in the college run by the Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust. In those circumstances, this Court has clearly observed as under : “20. The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. * * * 22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: “To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.” We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available “to reach injustice wherever it is found”. Technicalities should not come in the way of granting that relief under Article 226. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available “to reach injustice wherever it is found”. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.” The aforesaid observations have been repeated and reiterated in numerous judgments of this Court including the judgment in Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645 and Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649 , brought to our notice by the learned counsel for the Appellant Mr.Parikh. 14. In view of the law laid down in the aforementioned judgments of this Court, the judgment of the learned Single Judge as also the Division Bench of the High Court cannot be sustained on the proposition that the writ petition would not be maintainable merely because the respondent institution is a purely unaided private educational institution. The appellant had specifically taken the plea that the respondents perform public functions, i.e. providing education to children in their institutions throughout India.” 8. The Supreme Court after holding the writ petition to be maintainable entertained the appeal and thereafter, examined the case on its merit. At the same time, it was also pointed out that the State of Punjab has set up a Tribunal, namely, Punjab School Education Tribunal and the appellant had a remedy before the Tribunal and the matter may be remitted to the Tribunal. However, since the Supreme Court had entered into the merits of the matter and found the enquiry to be vitiated on the ground of bias since the Principal who had issued warning to the petitioner was a member of the Disciplinary Committee, the Supreme Court instead of relegating the appellant to the Disciplinary Authority permitted him to challenge the order of the Disciplinary Authority before the Punjab School Education Tribunal. 9. Learned counsel for the petitioner has also relied upon the judgment of the learned Single Judge in the case of Iftekhar Ahmad v. State of U.P. and others, 2013(5) ADJ 168 . 10. The learned counsel for the respondents on the other hand have relied upon the following judgements of this Court : 1. M.K. Gandhi and others v. Director of Education (Secondary) U.P., Lucknow and others, 2005(3) ESC 2265 (All)(FB). 10. The learned counsel for the respondents on the other hand have relied upon the following judgements of this Court : 1. M.K. Gandhi and others v. Director of Education (Secondary) U.P., Lucknow and others, 2005(3) ESC 2265 (All)(FB). 2. Anjani Kumar Srivastava v. State of U.P. and others, 2017(7) ADJ 112 (DB). 3. Ms. Geeta Pushp v. Union of India and others, 2018(3) ADJ 98 . 11. The learned counsel for the respondents has also relied on a judgment of the Supreme Court dated 16.8.2007 in Civil Appeal No. 339 of 2007, Committee of Management, Delhi Public School and another v. M.K. Gandhi and others. 12. In M.K. Gandhi v. Director of Education (Secondary) U.P., Lucknow and others, 2005(3) ESC 2265 (All)(FB), the Full Bench of this Court held that the Delhi Public School is not a State within the meaning of Article 12 of the Constitution. It also held the Central Board of Secondary Education (the Board) to be State within the meaning of Article 12 of the Constitution. The judgment of M.K.Gandhi v. Director of Education (Secondary) U.P., Lucknow and others, 2005(3) ESC 2265 (All)(FB), was challenged in the Supreme Court which set aside the order of the Allahabad High Court observing as under : “That all the respondents were teachers in DPS School, Ghaziabad. Their services were terminated. Therefore, they approach the High Court of Allahabad for setting aside the termination order. The learned Single Judge referred the matter to a larger Bench on the question as to whether the writ petition is maintainable against the private school or not, as there was conflict of opinion of that High Court. Subsequently, the matter was referred to the larger Bench and the larger Bench after hearing the parties, held that no writ will lie against the private school as it is not a ‘State’ within the meaning of Article 12 of the Constitution of India. Having held that the writ petition is not maintainable against the private body, still, they directed the CBSE to take action, as mentioned above. With great respect to the Full Bench of the High Court, we fail to understand the direction given by the Allahabad High Court. In our opinion, the direction given by the Allahabad High Court to the CBSE to totally misconceived and uncalled for. With great respect to the Full Bench of the High Court, we fail to understand the direction given by the Allahabad High Court. In our opinion, the direction given by the Allahabad High Court to the CBSE to totally misconceived and uncalled for. When the Allahabad High Court has already held that the DPS School is within the meaning of Article 12 of the Constitution of India and the writ petition is not maintainable, there was no necessity for giving a direction to the CBSE which virtually amounts to granting a declaration in favour of those teachers whose services have been terminated. We fail to appreciate the view taken by the Allahabad High Court by unnecessarily complicating the issue by involving the CBSE for a private dispute between the teachers and the DPS. The Allahabad High Court should have stop short of holding that the said DPS is a private body and the writ is not maintainable. Hence, we are of the view that no writ is maintainable against a private school as it is not a ‘State’ within the meaning of Article 12 of the Constitution of India and no direction could have been given by the High Court to the CBSE for interfering with the functioning of the teachers. The proper remedy for the teachers was to fie a civil suit for damages, if there was any. Subsequently, we allow this appeal and set aside the order passed by the Allahabad High Court to the extant of giving a direction to the Board. There will be no order as to costs.” 13. It is to be noted that at that time, the Full Bench did not have the benefit of Ramesh Ahluwalia v. State of Punjab and others, (2012) 12 SCC 331, of the Supreme Court. 14. In Anjani Kumar Srivastava v. State of U.P. and others, 2017(7) ADJ 112 (DB), the Division Bench of this Court has no doubt referred to the judgment of Ramesh Ahluwalia2 but held that the Institution in question is totally a private Institution and, therefore, writ petition is not maintainable and that the remedy of the petitioner-appellant lies in approaching the Civil Court. Para 3 of the judgment reads as under : “3. Para 3 of the judgment reads as under : “3. Record in question reflects that there is an Institution known as ‘Raghuvar Prasad Jaiswal Saraswati Shishu Mandir Inter College, Tetri Bazar, District Siddhartha Nagar’ (hereinafter referred to as the ‘Institution’) recognized under the provisions of U.P. Intermediate Education Act, 1921 and the said Institution is also recognized upto intermediate classes by the Board of High School and Intermediate Education U.P. at Allahabad but the said institution does not come under the purview of U.P. Act No. 24 of 1971. It is relevant to indicate that in the year 1985, the Board of High School and Intermediate U.P. at Allahabad accorded recognition under Section 7AA of U.P. Intermediate Education Act, 1921 in respect of which the Government Order is not at all applicable to make any payment of salary from the State exchequer. The Institution is a registered Society under the Societies Registration Act, 1860 and it is claimed that the said Society framed rules namely ‘Acharya Evam Karmchari Sewa Niyamawali’. The Institution is a registered Society under the Societies Registration Act, 1860 and it is claimed that the said Society framed rules namely ‘Acharya Evam Karmchari Sewa Niyamawali’. It appears that in the present matter some disciplinary action/proceeding has taken place against petitioner-appellant and in this backdrop it is claimed that as per clause 16.2, only the Committee of Management of Institution concerned is competent authority to initiate disciplinary proceedings against the teaching and non-teaching staff of the Institution and the Principal of the Institution is not empowered to take any such action and as such suspension order dated 3.1.2017 cannot sustain, which was subject-matter of challenge before learned Single Judge and it has also been claimed that the Institution is imparting education and therefore is performing public function and as such Writ Petition was very much maintainable and in support of his submission, the learned counsel for the petitioner-appellant has placed reliance on the judgement passed by Apex Court in the case of Ramesh Ahluwalia v. State of Punjab and others, 2012 (12) SCC 331, before the Learned Single Judge and the Learned Single Judge has proceeded to observe that the said judgement was relating to Central Board of Secondary Education and on the said score, he has proceeded to non-suit the claim of petitioner-appellant precisely on the ground that Institution in question is a private institution and unaided in any form by the Government, although it is claimed that the same is recognized by the Board of High School and Intermediate Education U.P. at Allahabad but as the Institution in question is totally a private institution, Writ Petition is not at all maintainable and the remedy of petitioner-appellant lies in approaching the Civil Court instead of rushing to this Court.” 15. In the case of Geeta Pushp v. Union of India and others, 2018(3) ADJ 98 , also the learned Single Judge has only adverted to the judgment of Ramesh Ahluwalia v. State of Punjab and others, 2012 (12) SCC 331, in para 13 but thereafter, the said judgment has not been discussed anywhere and the learned Single Judge in para 18 has held that an employee of a private educational institution cannot enforce service contract in writ jurisdiction but with regard to the school in question to which the Delhi School Education Act, 1973 and Rules framed thereunder were admitted to be applicable held that the writ petition would be maintainable to enforce the Act and the Rules against the Institution. The judgment of Iftekhar Ahmad v. State of U.P. and others, 2013(5) ADJ 168 , is of the year 2012 and refers to a minority institution and the Court held that any law intended to regulate the service conditions of employee of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the management over the staff. The case of Ramesh Ahluwalia v. State of Punjab and others, 2012 (12) SCC 331, was not considered in that judgement also. 16. In my opinion, since the judgment of Ramesh Ahluwalia v. State of Punjab and others, 2012 (12) SCC 331, clearly stipulates that even a purely private body where the State has no control over its internal affairs would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution if it discharges a public function or public duty, the judgment of the Full Bench of this Court in M.K. Gandhi v. Director of Education (Secondary) U.P., Lucknow and others, 2005(3) ESC 2265 (All)(FB), as well as the Division Bench judgment in Anjani Kumar Srivastava v. State of U.P. and others, 2017(7) ADJ 112 (DB), needs to be revisited. 17. It is, therefore, directed that the records of this case be placed before the Hon’ble Chief Justice for referring the matter to the Larger Bench in the light of the judgment of the Supreme Court in the case of Ramesh Ahluwalia v. State of Punjab and others, 2012 (12) SCC 331.