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2019 DIGILAW 1918 (JHR)

Umesh Kumar Pandey v. State of Jharkhand

2019-11-26

RAVI RANJAN, S.N.PRASAD

body2019
ORDER : 1. This intra-court appeal has been filed under Clause-10 of the letters patent appeal questioning the order dated 24.7.2018 passed in W.P. (S) No. 3094 of 2018, whereby and whereunder the learned Single Judge has refused to issue mandamus by extending the pay-scale at par with the Government Teachers working under the Government School. 2. The brief facts of the case of the appellant is that the appellant as also the similarly situated persons are working in the educational institution aided by Tata Motors. The teachers working there have raised the issue that even though they are performing the work similar in nature to that of teachers working in the Government Schools, they are not being given pay-scale at par with them. The appellant has agitated the said grievance by filing the writ petition being W.P. (S) No. 2448 of 2008 but the same was dismissed as withdrawn vide order dated 17.7.2012 (Annexure-1). The appellant then filed a civil miscellaneous petition being CM.P. No. 397 of 2012 for recall of order dated 17.7.2012 passed in W.P. (S) No. 2448 of 2008 but the same was also dismissed as withdrawn with liberty to the appellant to file a fresh writ petition as would be evident from the order dated 24.11.2017 passed therein. The petitioner has filed a fresh writ petition being W.P. (S) No. 3094 of 2018 in pursuance to the aforesaid liberty but the same has been dismissed, against which, the present intra-court appeal has been preferred. 3. This Court, after hearing the learned counsel for the appellant and after going across the order passed by the writ Court dated 24.7.2018 has found therefrom that the writ petition has been dealt with, while disposing of the same, two grounds. First is the question of res-judicata and the second is maintainability of the writ petition under Article 226 of the Constitution of India on the ground that the appellant, since working under the private unaided school, therefore, may not be amenable to the writ jurisdiction, since it is not coming under the fold of Article 12 of the Constitution of India which dealt with the instrumentality of the State. 4. 4. So far as the question of res-judicata is concerned, the submission has been made by the learned counsel for the appellant that the said finding is not sustainable in the eye of Law in view of the liberty granted by this Court in C.M.P. No. 397 of 2012 disposed of on 24.11.2017 as contained under Annexure-3. 5. This Court is not in difficulty in accepting the said submission after going through the order passed in C.M.P. No. 397 of 2012 dated 24.11.2017 (Annexure-3), whereby and whereunder the learned Single Judge, while permitting to withdraw the said C.M.P. had granted liberty to file fresh writ petition. 6. This Court deems it fit and proper to refer the aforesaid order which reads as hereunder:- “After some arguments Mr. Pandey Neeraj Rai, learned counsel appearing for the petitioners seeks permission of the Court to withdraw this application to enable him to file fresh writ petition in view of the earlier order passed in W.P. (S) No. 2448 of 2008. Prayer is allowed. This application is accordingly dismissed as withdrawn with liberty as aforesaid.” 7. It is settled position of law that res-judicata means any decision already taken in between the same parties on merit. 8. It is the admitted case that issue has not been dealt with on merit and therefore, there is no question of lis being barred by the principle of res-judicata, which emanates out of Section 11 of the Code of Civil Procedure. 9. This Court further deems it fit and proper to refer the legal position that after withdrawal of the writ petition, the second writ petition is not maintainable if there is no leave granted to that extent but as would be evident from the order dated 24.11.2017 passed in C.M.P. No. 397 of 2012, it appears that while allowing the C.M.P. liberty has been granted to file fresh writ petition and therefore, once the liberty has been granted by the Competent Court of Law, the second writ petition cannot be held to be barred. In view thereof, the contention which has been raised by the learned counsel for the appellant cannot be said to be unjustifiable and as such, the same has been answered in favour of the appellant. 10. In view thereof, the contention which has been raised by the learned counsel for the appellant cannot be said to be unjustifiable and as such, the same has been answered in favour of the appellant. 10. So far as the issue about maintainability of the writ petition against the private unaided school, this Court deems it fit and proper to refer certain judgments wherein the issue has been dealt with. The Hon'ble Apex Court in the case of Sushmita Basu vs. Ballygunge Siksha Samity, (2006) 7 SCC 680 has held in paragraph-3 that writ petition is not maintainable against a private school recognized by the Government. In yet another judgment rendered by the Hon'ble Supreme Court in M. Raja vs. CEERI Educational Society Pilani, (2006) 12 SCC 636 , it has been held at paragraph-25 that interference in the affairs of a private educational institution would be justified only if public law element is involved. In the case of Zee Telefilms Ltd. and Another vs. Union of India and Others, (2005) 4 SCC 649 , also the intent of public duty has been taken into consideration while maintaining the writ petition against the private body. The writ petition was entertained taking into consideration the involvement of public element but certainly not involving the individual interest. In the case of State of Himachal Pradesh vs. H.P. State Recognized and Aided School Managing Committee, (1995) 4 SCC 507 also the writ petition has been held to be maintainable against private educational institution if the public law element is involved. In the case of Krishnamacharyulu and Others vs. Sri Venkateswara Hindu College of Engineering, (1997) 3 SCC 571 , the writ petition under Article 226 of the Constitution of India has been held to be maintainable if public law element is involved. In the case of Satimbala Sharma and Others vs. St. Paul's Senior Secondary School and Others, (2011) 13 SCC 760 , the Hon'ble Apex Court at paragraph-23 has held the writ petition not maintainable if public law element is not involved and if the grievance related to the salary and allowances of the employees which is exclusively the matter of contract between the teacher and the school and not within the domain of public law. For ready reference, the relevant passage from the same is being extracted and produced herein-below: “23. For ready reference, the relevant passage from the same is being extracted and produced herein-below: “23. We also do not think that the Court could issue a mandamus to a private unaided school to pay the salary and allowances equal to the salary and allowances payable to teachers of government schools or government-aided schools. This is because the salary and allowances of teachers of a private unaided school is a matter of contract between the school and the teacher and is not within the domain of public law.” In the case of Ramesh Ahluwalia vs. State of Punjab and Others, (2012) 12 SCC 331, the writ petition has been held to be maintainable against the private schools if performing public functions. 11. This Court, on the basis of the ratio laid down as referred hereinabove, has examined the factual aspect to test about the availability of any public law element warranting this Court to issue writ in exercise of power conferred under Article 226 of the Constitution of India. 12. It is the case of the appellant that a direction upon the respondent has been sought for to extend the benefit of pay-scale at par with the Government/Nationalized Elementary Schools of respondent nos. 1 and 2 w.e.f. 1.1.2005. 13. This Court has examined the factual aspect on the basis of the pleadings made in memo of appeal which pertains to the grievance to the extent of benefit of pay-scale at par with the Government Schools, therefore, the same is not having any public law element rather the individual interest. 14. This Court is of the view that the nature of prayer is not having any public law element rather it is individual interest and as such, applying the ratio laid down in the aforesaid judgments as referred hereinabove. Accordingly, the writ petition is held not maintainable against the private unaided institution filed for a direction to extend the benefit of pay-scale at par with the teachers working under respondent nos. 1 and 2. 15. This Court, after going across the impugned order, has found that the learned Single Judge has taken into consideration the issue of maintainability of the writ petition and by placing reliance upon the judgment rendered in the case of Sushmita Basu vs. Ballygunge Siksha Samity (supra), has been pleased to hold the writ petition as not maintainable. 16. 15. This Court, after going across the impugned order, has found that the learned Single Judge has taken into consideration the issue of maintainability of the writ petition and by placing reliance upon the judgment rendered in the case of Sushmita Basu vs. Ballygunge Siksha Samity (supra), has been pleased to hold the writ petition as not maintainable. 16. Further, it is evident that if there is any legal vested right accrued to the litigant and if there is any violation of the said legal right, a writ can be issued but, as would appear from the impugned order, the appellant has failed to place any statutory provision for getting the benefit of pay-scale at par with the Government Employees, therefore, the learned Single Judge has also refused to entertain the writ petition. 17. This Court, is also of the view that, while recording such finding, the learned Single Judge has not committed any error. 18. In the result, this appeal is dismissed.