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2019 DIGILAW 1544 (JHR)

Anup Kumar Sarkar v. Union of India

2019-09-04

SANJAY KUMAR DWIVEDI

body2019
JUDGMENT : Sanjay Kumar Dwivedi, J. 1. Heard Mr. Prakash Chandra, learned counsel for the petitioner, Mr. Madan Prasad, learned C.G.C. for the respondent Union of India and Mr. Arpan Mishra, learned counsel appearing for the respondent- Xavier Institute of Social Services (XISS). 2. This matter was taken up on 05.08.2019 on that date Mr. Indrajeet Sinha, learned counsel appeared for the petitioner raised the preliminary issues as the writ petition is not maintainable as XISS is not State within the meaning of Article 12 of the Constitution of India. The matter was adjourned for 29.08.2019 to argue the matter on the issue of maintainability of the writ petition. But, on 29.08.2019 none appears for the respondent no. 2 and it was recorded that if the respondent will not argue the matter on the next date, the matter will be heard on merit. 3. Today, Mr. Arpan Mishra, learned counsel appearing for the respondent no. 2. However, in spite of the earlier times granted by this Court no affidavit has been filed on behalf of the respondent no. 2. In view of the order dated 29.08.2019, the learned counsel appearing for the parties were called upon to address this Court on merit. 4. On maintainability, learned counsel for the petitioner submits that the All India Council for the Technical Education (A.I.C.T.E.) was established in the year 1945 as a national level Apex Advisory Body to conduct a survey on the facilities available for technical education and to promote Development in the Country in a coordinated and integrated manner. It covers technical education including training and research in engineering and technology and management etc. further, he submits that under AICTE Act 1987, the Minister of Human Resources Development, the Chairman for the first five years. In the year 1993, the first full time chairman was appointed. He referred to prospectus of the Post Graduate course for the year 2007-2009 and submits that many courses were approved by the AICTE meaning thereby it comes under the jurisdiction of Human Resources Development, Government of India. He further submits that the respondent no. 2 has framed Personnel Rules of 1997 for service conditions of petitioner employed in the year 1977. The said rule annexed as Annexure-10 of the supplementary affidavit filed by the petitioner. He further submits that the respondent no. 2 has framed Personnel Rules of 1997 for service conditions of petitioner employed in the year 1977. The said rule annexed as Annexure-10 of the supplementary affidavit filed by the petitioner. He refers the prospectus wherein it is prescribed that that 2 years Post Graduate Diploma in Rural Development is approved by AICTE. By referring to clause-IV of direct appointment he submits that pay scales are fixed in terms of the recommendation of the AICTE and UGC and on this extent relying on these documents he submits that XISS is discharging a public duty and accordingly, the writ is maintainable under Article 226 of the Constitution of India. In support of his submission, learned counsel relied upon a recent decision rendered by the Hon'ble Apex Court in the case of Marwari Balika Vidyalaya vs. Asha Srivastava & Ors. Reported in passed in Civil Appeal No. 9166 of 2013 disposed of vide order dated 14th February, 2019 and submits that in view of the law laid down by the Hon'ble Apex Court this writ petition is maintainable. He referred paragraph nos. 15 & 16 of the said judgment which is quoted herein below: "15. Writ application was clearly maintainable in view of aforesaid discussion and more so in view of the decision of this Court in Ramesh Ahluwalia v. State of Punjab & Ors. (supra) in which this court has considered the issue at length and has thus observed: "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 Mukti Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust. In those circumstances, this Court has clearly observed as under: (V.R. Rudani case, SCC PP. 700-701, paras 20 & 22) "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. 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. We, therefore, reject the contention urged for the appellant on the maintainability of the writ petition. The aforesaid observations have been repeated and reiterated in numerous judgments of this Court including the judgments in Unni Krishnan and Zee Telefilms Ltd. brought to our notice by the learned counsel for the appellant Mr. Parikh. 14. In view of the law laid down in the aforementioned judgment 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 maintainable merely because the respondent institution is a purely unaided private educational institution. Parikh. 14. In view of the law laid down in the aforementioned judgment 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 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." (emphasis supplied) 16. It is apparent from the aforesaid decisions that the Writ Application is maintainable in such a matter even as against the private unaided educational institutions 5. Further he refers a judgment of the Hon'ble Orissa High Court in the case of Subas Chandra Mishra vs State of Orissa And Others on 14 March, 2018 in W.P.(S) No. 9492 of 2010 reported in 2018 0 Supreme (Ori) 220 and submits that exactly the similar issue was before the Orissa High Court wherein Hon'ble Orissa High Court by referring certain judgments came to the conclusion and held that writ is maintainable against the institute as public element is involved in it. By referring para 24 and 25 which reads as under:- 24. In the writ application it has been prayed to release the differential arrear salary as per the terms and condition of the appointment letter as admissible to Government servant and the pay scale sanctioned to the Instructor by the A.I.C.T.E. 25. It has been observed that the scale of pay at par with the Government servant of the petitioner has been revised, but the revised scale of pay under the A.I.C.T.E. has not been released. At the same time in the counter affidavit the Opp. Parties 3 and 4 have taken the stand that the petitioner is not entitled to any amount than the contractual amount mentioned in the appointment letter. In fact from Annexure-2, it appears that the petitioner has been paid some salary at the discretion of SMIT, but neither according to the Orissa Revised Scale of Pay Rules nor the A.I.C.T.E. Rules. So, it is axiomatic to observe that the petitioner is entitled to the scale of pay of an Instructor as payable in the institution affiliated to A.I.C.T.E. as claimed by the petitioner. So, this Court direct the Opp. So, it is axiomatic to observe that the petitioner is entitled to the scale of pay of an Instructor as payable in the institution affiliated to A.I.C.T.E. as claimed by the petitioner. So, this Court direct the Opp. Parties 3 and 4 to fix up the pay in accordance with the A.I.C.T.E. Rules for the post of Instructor from the date of his appointment i.e. 1985-86 till his retirement and make disbursement of the differential arrear salary. It is needless to say that after re-fixation of salary, pensionary benefits, if any, accrued on re-fixation be re-fixed on the last pay drawn and differential arrear amount be released to the petitioner by Opp. Parties 3 and 4. The entire exercise be completed by Opp. Parties 3 and 4 within a period of four months from today. 6. Argument of learned counsel for the petitioner venture this Court to look into the case law referred by the Hon'ble Apex court and the issue was decided by the Hon'ble Apex Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors. v. V.R. Rudani & Ors. As reported in (1989) 2 SCC 691 at paragraphs 20, 21 and 22 held 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. 21. In Praga Tools Corpn. 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. 21. In Praga Tools Corpn. v. C.A. Imanual this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the statutes even though they are not public officials or statutory body. It was observed: "It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. 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. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition." Further, the Hon'ble Apex Court in the case of Zee Telefilms Ltd. & Anr. Vs. Union of India & Ors. as reported in (2005) 4 SCC 649 held that if the public element is there the writ is maintainable. 7. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition." Further, the Hon'ble Apex Court in the case of Zee Telefilms Ltd. & Anr. Vs. Union of India & Ors. as reported in (2005) 4 SCC 649 held that if the public element is there the writ is maintainable. 7. In the same line, the Hon'ble Apex Court in the case of Francis John v. Director of Education as reported in (1989) Suppl 2 SCC 598 if public element is there then writ is maintainable. 8. This Court also examined the judgment rendered in the case of M. Raja Vs. Ceeri Educational Society Pilani & Anr. as reported in (2006) 12 SCC 636 , wherein the Hon'ble Court has been pleased to hold that interference in the affairs of private educational institutions would be justified only if public element is involved. The Hon'ble Supreme Court in the case of State of H.P. Vs. H.P. State Recognised & Aided Schools Managing Committees & Ors. as reported in (1995) 4 SCC 507 held that writ petition is maintainable against private person if the public law element is involved. Likewise in the judgment of K. Krishnamacharyulu & Ors. Vs. Sri Venkateswara Hindu College of Engineering & Anr. as reported in (1997) 3 SCC 571 held that writ under Article 226 of the Constitution of India has been held to be maintainable if public law element is involved. Further, the Hon'ble Apex Court in the case of Ramesh Ahluwalia vs. State of Punjab & Ors. as reported in (2012) 12 SCC 331 held that writ has been held to be maintainable against private schools, if it performs public functions. 9. The counsel for the respondent no. 2 has not pointed out anything with regard to the maintainability of the writ petition. 10. As a cumulative effect of the above facts discussions law laid down by the Hon'ble Supreme Court, this Court finds that the respondent is discharging a public duty and the public element is involved therein. Hence, the writ is maintainable against the respondent no. 2 maintainable. Accordingly, preliminary question raised by the respondent no. 2 is answered in that terms. 11. Upon merit of the case learned counsel for the petitioner submits that the petitioner was asked to retire at the age of 60 years on 31.12.2007 whereas the rule of respondent no. Hence, the writ is maintainable against the respondent no. 2 maintainable. Accordingly, preliminary question raised by the respondent no. 2 is answered in that terms. 11. Upon merit of the case learned counsel for the petitioner submits that the petitioner was asked to retire at the age of 60 years on 31.12.2007 whereas the rule of respondent no. 2 so far as retirement age is concerned it should be 62 years. He refers to Annexure-10 chapter 6 of that annexure which stipulate about the age of retirement for the sake of convenience the retirement clause is being incorporated herein below: Retirement:- (a) On completing his or her 62 years of age, a regular employee shall retire from the institute. On the occasion of retirement an employee will withdraw his or his Provident Fund from the P.F. Commissioner's office and will receive Gratuity as per rules. (b) Within two months of retirement he or she should vacate the staff quarter which was allotted to him/her as a regular employee. 12. He further submits that in view of the above clause the retirement age is prescribed as 62 years whereas the petitioner has been asked to be retired at the age of 60 years. He further submits that the petitioner has sent several notices to the respondent no. 2 which are annexed as Annexure nos. - 6/1 and 6/2 and Annexure- 7 of the writ petition. He further submits that in spite of several notices, the respondent no. 2 has not replied and thereafter the petitioner was compelled to file the writ petition before this Court. 13. He referred Annexure-1 of the writ petition which is a certificate of retirement of this petitioner w.e.f. December 2007. From this certificate, it is not clear that as to what age the petitioner has been asked to be retired. 14. On the other hand, learned counsel for the respondent no. 2 submits that this petitioner has filed this writ petition four years after the retirement. The writ petition is fit to be dismissed on the ground of delay and latches in filing the writ petition. The said argument of the respondent is not accepted. In view of the fact that the petitioner has already sent legal notices to the respondent no. 2 in the year 2010 itself and the respondent no. 2 did not reply the same. The said argument of the respondent is not accepted. In view of the fact that the petitioner has already sent legal notices to the respondent no. 2 in the year 2010 itself and the respondent no. 2 did not reply the same. The legal notices have been annexed with the writ petition. 15. As there is no disclosure of the fact with regard to the retirement at the age 60 years, taking into consideration the legal notices issued by the petitioner which are also annexed with the writ petition, this Court consider that the case of the petitioner needs to be considered by the respondent no. 2 at first instance. The respondent no. 2 is directed to pass a speaking and reasoned order, in the light of the observations and direction made hereinabove, within a period of six week's from the date of receipt/production of a copy of this order. 16. In view of the above directions and observations, the writ petition stands allowed and disposed of.