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Madhya Pradesh High Court · body

2021 DIGILAW 271 (MP)

Sandeep Jain v. State of M. P.

2021-03-01

G.S.AHLUWALIYA

body2021
JUDGMENT : Gurpal Singh Ahluwalia, J. 1. Heard finally. By this common order, W.P. No.13260 of 2020 (Sandeep Jain vs. State of MP. and others), W.P. No.15531/2020 (Dr. Lokesh Bajpai Vs. State of M.P. and others), W.P. No.18995/2020 (Dr. Alok Jain and another Vs. Thte State of M.P. and others), W.P. No.19212/2020 (Dr. Rajendra Dubey Vs. The State of M.P. and others) and W.P. No.19866 of 2020 (Smt. Vibha Jain Vs. The State of M.P. and others) are being decided. 2. In W.P. No. 13260 of 2020 initially an order of compulsory retirement was issued and in W.P. No. 15531 of 2020, initially an order of retirement in public interest was issued. However, later on, in W.P. No. 13260 of 2020 and W.P. No. 15531 of 2020 corrigendum dated 22-9-2020 was issued and the words "Compulsory retirement" and "retirement" were changed to "discharge". Accordingly, in all the writ petitions, the petitioners have been discharged from service. 3. For the convenience, the facts of W.P. No. 13260 of 2020 are being considered. 4. This petition under Article 226 of the Constitution of India has been filed against the order dated 17-8-2020 passed by respondent No. 4, thereby the petitioner was compulsorily retired on completion of 20 years of service/50 years of age. 5. It is the case of the petitioner, that respondent No. 4/Samrat Ashok Technological Institute (Engineering College), Vidisha is an Engineering College, managed by respondent No. 3. It is the claim of the petitioner, that respondent No. 4 is getting grant in Aid from the State Government under the Grant in Aid Rules, 1991 for technical institutions and accordingly, it is claimed that the respondent No. 4 is a State within the meaning of Article 12 of the Constitution of India. It is further submitted that the respondent No. 4 is under obligation to follow the College Code framed by State Govt. under Section 38(1) read with Section 37 of Rajiv Gandhi Proudyogiki Vishwavidyalaya Adhiniyam, therefore, the writ petition before this Court is maintainable. 6. It is the case of the petitioner, that he was initially appointed as Lecturer on Probation basis in the year 1988 and later on, he was confirmed and at present he is holding the post of Associate Professor. Further, in the Budget for the year 2015-16, the petitioner was shown as permanent and under grantee staff. 7. 6. It is the case of the petitioner, that he was initially appointed as Lecturer on Probation basis in the year 1988 and later on, he was confirmed and at present he is holding the post of Associate Professor. Further, in the Budget for the year 2015-16, the petitioner was shown as permanent and under grantee staff. 7. In the year 2016, some agitation took place as the EPF contribution of the staff was reduced by the management, contrary to the provisions of the EPF Act, and the petitioner had also taken part in the said agitation and accordingly, the management developed malice and therefore, a charge sheet was issued to the petitioner. The said charge sheet has been challenged by the petitioner by filing W.P. No. 3501/2017 and an interim order has been passed by this Court and the respondents No. 3 and 4 have been restrained from passing any final order. It is further submitted that the enquiry has been completed and the enquiry officer has found that none of the charges have been proved and the said findings have also been accepted by the Director, Technical Education. 8. Due to the imposition of Country wide Lockdown w.e.f. 24-3-2020, the physical classes were also kept in abeyance and the respondent No. 4 resorted to Online Classes. Further, the respondents No. 3 and 4, stopped the payment of salary to the staff in spite of the fact that AICTE has directed all the technical colleges not to terminate the services of any faculty or staff on account of lockdown. Accordingly, the staff union has filed W.P. No. 10470 of 2020 before this Court for release of their salary and notices have been issued. It is claimed by the petitioner, that as soon as the respondent No. 3 came to know about the filing of the writ petition, the attitude of the respondents No. 3 and 4 towards the staff became vindictive and accordingly, under the garb of financial distress, the petitioner has been compulsorily retired from service. But on the other hand the respondent No. 4 has invited tenders for furnishing, renovation etc. It is the claim of the petitioner, that the services of the petitioner are neither governed by M.P. Civil Services (Pension) Rules, nor the Fundamental Rules. But on the other hand the respondent No. 4 has invited tenders for furnishing, renovation etc. It is the claim of the petitioner, that the services of the petitioner are neither governed by M.P. Civil Services (Pension) Rules, nor the Fundamental Rules. It is submitted that the service conditions of the teaching Staff of Respondent No. 4 do not contain any Rule akin to Rule 42 of M.P. Civil Services (Pension) Rules, nor FR (2)(a). The respondent No. 4 is a 100% grantee Engineering college. The service conditions of the petitioner are governed by College Code (Statute 30) framed under Rajeev Gandhi Prodyogiki Vishvavidyalaya Adhiniyam, as well as Regulations framed by All India Council for Technical Education. The State Govt. has accepted the AICTE Regulations for the aided Colleges by issuing order dated 14-9-2010 and as per Clause 3 of the aforesaid order, the age of superannuation is 62 years. 9. Thereafter, it appears that a corrigendum was issued by the respondent No. 4, and by order dated 22-9-2020, the impugned order dated 17-8-2020 was amended and instead of "retire", the petitioner was "discharged" and accordingly, the petition was amended and the relief for quashment of order dated 22-9-2020 was also added (Although the amendment in the physical file has not been incorporated in compliance of order dated 13-10-2020, therefore, the Petitioner is granted 15 days time to incorporate the amendment in the physical file). To buttress his contention regarding maintainability of the writ petition, the petitioner has relied upon the judgments passed by the Supreme Court in the case of Ramesh Ahluwalia Vs. State of Punjab, (2012) 12 SCC 331, and Marwari Balika Vidyalaya vs. Asha Srivastava and others, (2020) 14 SCC 449 . 10. The respondent No. 4 filed its return and submitted that since, a corrigendum to the impugned order dated 17-8-2020 has been issued, therefore, it is a case of simple discharge and not compulsory retirement. It is also the stand of the respondent No. 4, that earlier by mistake, the word "retire" was used in order dated 17-8-2020. It is further submitted that since, the petitioner has been discharged in the light of the condition mentioned in his appointment order, therefore, no cause of action has arisen warranting interference in the writ petition. It is also the stand of the respondent No. 4, that earlier by mistake, the word "retire" was used in order dated 17-8-2020. It is further submitted that since, the petitioner has been discharged in the light of the condition mentioned in his appointment order, therefore, no cause of action has arisen warranting interference in the writ petition. It is further submitted that the writ petition is not maintainable as no public element is involved for which mandamus could be prayed. Even if the Institution discharges a public function, still no public law is involved, and the writ petition for enforcement of private right arising out of contractual nature of relationship is not maintainable. Some form of regulation by any Statute in return of affiliation would not bring the Institute within the ambit of Article 12 of the Constitution of India. 11. It is the claim of the respondent No. 4, that the respondent No. 4 is a Non-Government Institute which is managed and administered by Maharaja Jiwajirao Educational Society set up by the Ex-Ruler Jiwajirao Scindia with donation from Gangajali Trust fund. The Society has its own bye-laws in the form of Memorandum of Association and Articles of Association. Accordingly, a Managing Committee has been constituted which is known as Board of Governors for managing the Institute. As per Service Rule, the age of superannuation is 62 years. 12. The petitioner was initially appointed by order dated 12-9-1988 on the post of Lecturer and was confirmed vide order dated 7-11-1990 and was promoted as Reader on 12-9-2000 and thereafter he was designated as Associate Professor on 1-1-2006. As per the letter of appointment, the management can terminate the services of the employees by issuing a notice of three months or by making payment of three months salary in advance in lieu of notice period. 13. Only block grant is received from the Govt. as an aid for running the Institute which is barely enough to meet 1/4th of the total expenses of respondent No. 4. Tremendous pressure was being put on the Board of Governors, to adopt the revised pay scale thereby bringing the salary at par with the employees of State of M.P., accordingly, regular protests/dharna were being staged by various classes of the employees. Tremendous pressure was being put on the Board of Governors, to adopt the revised pay scale thereby bringing the salary at par with the employees of State of M.P., accordingly, regular protests/dharna were being staged by various classes of the employees. It is fairly conceded that the block grant which is received by the respondent No. 4 is being spent for the payment of salary to the staff. The total expenditure of the respondent No. 4 is 25 crores p.a. out of which an amount of Rs. 23.50 crores is being spent for payment of salary to the staff whereas the Institute is getting the block grant of Rs. 5 crores p.a. approximately and the revenue of the institute is Rs. 13 crores p.a. and thus, the Institute is running in losses. The State Govt. has refused to enhance the block grant and has advised the College to reduce its expenses, therefore, unless and until, drastic steps are taken, the Institute would be on the verge of closure. 14. Accordingly, Former District Judge, Shri Jagdish Baheti was directed to examine the service record of all the employees and thereafter, the Board of Governor also constituted a Committee for overall screening of the employees. Accordingly, the Screening Committee submitted its separate report for Class I, II, II and IV employees and recommended to discharge them from service. Accordingly, the Board of Governors, vide its resolution dated 22-10-2019 approved the proposal of the Screening Committee relating to discharge of employees in the interest of Institute. 15. It is further submitted that pursuant to the resolution passed by the Board of Governor, the Director of the Institute/respondent No. 4 issued the impugned order dated 17-8-2020, thereby compulsorily retiring the petitioner, which was subsequently corrected as "discharge" by issuing a corrigendum dated 22-9-2020. 16. Preliminary Objection with regard to the maintainability of this petition has been raised on the ground that the dispute is personal in nature as no public element is involved. The petition cannot be entertained for breach of contract. The petitioner has an alternative remedy by raising the dispute before the Tribunal to be constituted under Clause 42 of the College Code. It is further submitted that since, the petitioner has already approached the Kulapati against the impugned order dated 17-8-2020, therefore, the petition is liable to be dismissed on account of suppression of facts. The petitioner has an alternative remedy by raising the dispute before the Tribunal to be constituted under Clause 42 of the College Code. It is further submitted that since, the petitioner has already approached the Kulapati against the impugned order dated 17-8-2020, therefore, the petition is liable to be dismissed on account of suppression of facts. It is further submitted that in absence of violation of any statutory/legal right of the petitioner, the petition is not maintainable and the contract of personal services cannot be enforced. Although in the return, a stand has also been taken that since, the petitioner has accepted his salary of three months, therefore, he has waived his right to approach the High Court, but this ground was not raised at the time of arguments. 17. It is denied that the Institution/Respondent No. 4 is 100% grantee Engineering College. Although the AICTE has recommended that the age of superannuation would be 65 years, but looking to the precarious financial condition, the Board of Governors has not adopted the said recommendation of the AICTE. Further, merely, because the age of superannuation is 62 years, would not ipso facto mean that the petitioner is entitled to continue till the age of 62 years, but the College Code provides for discharge from service with three months notice or payment of three month's salary in lieu of three months notice. It is further denied that the salary of any staff has been stopped under the garb of covid 19 pandemic and since, the termination of the service of the petitioner is not the outcome of covid 19 pandemic, therefore, the letter of AICTE has no relevance for determining the validity and legality of impugned order. It is further submitted that neither the College Code, nor AICTE regulation nor any instruction from the State Government relating to service condition having financial implications are binding on the Institution/Respondent No. 4. To buttress his preliminary objection with regard to non-maintainability of the writ petition, the respondent No. 4 has relied upon the judgments passed in the cases of S.K. Varshney Vs. Principal, Our Lady of Fatima H.S.S. And others in C.A. No. 008783-008784 of 2003, Yashwant Singh Sikarwar Vs. Teresian Carmel Educaional Society and others in 2008 (4) MPLJ 611 , K. Krishnamacharyulu and others Vs. Venkateswara Hindu College of Engineering and others, (1997) 3 SCC 571 , Sunil Kumar Saxena Vs. Principal, Our Lady of Fatima H.S.S. And others in C.A. No. 008783-008784 of 2003, Yashwant Singh Sikarwar Vs. Teresian Carmel Educaional Society and others in 2008 (4) MPLJ 611 , K. Krishnamacharyulu and others Vs. Venkateswara Hindu College of Engineering and others, (1997) 3 SCC 571 , Sunil Kumar Saxena Vs. Holy Cross Ashram Higher Secondary School and others, 2009 (4) MPLJ 641 , Sushmita Basu and others Vs. ballygunge Siksha Samiti and others, (2006) 7 SCC 680 , General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur U.P. Vs. Satrughan Nishad and others, (2003) 8 SCC 639 , Binny Ltd. And others vs. V. Sadasivan and others, (2005) 6 SCC 657 , VST Industries Ltd. Vs. VST Industries Workers' Union and others, (2001) 1 SCC 298 , Zee Telefilms Ltd. And others Vs. Union of India and other, (2005) 4 SCC 649 , Ramakrishna Mission and others Vs. Kago Kunya and others, (2019) 16 SCC 303 , Smt. Rakhi Bhalla Vs. The DPS Society in W.P. No. 25485/2019, Trigun Chand Thakur Vs. State of Bihar and others, (2019) 7 SCC 513 , Rakhi Bhalla Vs. The DPS Society in W.A. No. 35/2020, Miss Hill Education Society and another Vs. Neeti Bahm and others C.A. No. 11198-11199/2014, Executive Committee of Vaish Degree College, Shamli and others Vs. Lakshmi Narain and others, AIR 1976 SC 888 , State Bank of India and others Vs. S.N. Goyal, (2008) 8 SCC 92 , Satimbla Sharma and others Vs. St. Paul's Senior Secondary School and others, (2011) 13 SCC 760 , Committee of Management, Delhi Public School and others Vs. M.K. Gandhi and others, (2015) 17 SCC 353, The Bhartiya Vidya Bhavan, Vs. Raju B. and others W.A. No. 1060 and 1347 of 2019, Guru Ramdas Khalsa Institute of Science and Technology Pharmacy Jabalpur Vs. Akhilesh Tripathi W.A. No. 1004/2018. 18. The petitioner has filed his rejoinder and submitted that the question of maintainability of writ petition has been decided by the Supreme Court in the case of Marwari Balika Vidyalaya Vs. Asha Srivastava and others reported in (2020) 14 SCC 449 . It is further denied that the petitioner has accepted the advance salary paid in lieu of three months' notice. Asha Srivastava and others reported in (2020) 14 SCC 449 . It is further denied that the petitioner has accepted the advance salary paid in lieu of three months' notice. On the contrary, it is submitted that the salary of three months has been unilaterally deposited in the salary account without any consent or any overt act on the part of the recipient and further, the petitioner is always ready and willing to return the said amount. 19. The Institute/respondent No. 4 filed its Additional Return to the Rejoinder filed by the petitioner and submitted that the contention made by the petitioner, that the deposit of three months advance salary was an unilateral act is incorrect because the petitioner has never returned the money by submitting his cheque. Further, the services of the petitioner have been discharged in the light of the report of the Screening Committee. 20. Heard the learned Counsel for the parties. 21. The first question for determination is that whether the writ petition under Article 226 of the Constitution of India is maintainable or not? 22. It is the case of the Institution/Respondent No. 4 that the service conditions of the employees of Institution/Respondent No. 4 are governed by Bye Laws of the Institution/Respondent No. 4 (Annexure R/2). 23. From the plain reading of this bye-laws, it is clear that it is nowhere mentioned that these bye-laws were approved or framed by the Board of Governor, but these bye-laws have been issued on 29-9-1964 by Principal, Samrat Ashok Technological Institute, Vidisha, under his own signatures. The Memorandum of Association of the Maharaja Jiwajirao Education Society, Vidisha provides the duties of Board of Governors which reads as under: 6(A). ....... The said Governing Body shall perform such function and exercise such powers as are delegated to them by the Society. In particular and for the time being such functions will be follows:- 1..... 2.... 3.... 4. To, grant leave and allowance, to determine conditions of service, to enter service contract and to grant extension of service to staff. 5..... 6.... 7.... 8.... 24. It is nowhere mentioned in the so called bye-laws which have been signed by the Principal, that the said bye-laws or conditions of service of employees were determined by the Board of Governors. Any Executive/Office Instructions issued by the Principal cannot be termed as Bye-laws of the Institution/Respondent No. 4. 25. 5..... 6.... 7.... 8.... 24. It is nowhere mentioned in the so called bye-laws which have been signed by the Principal, that the said bye-laws or conditions of service of employees were determined by the Board of Governors. Any Executive/Office Instructions issued by the Principal cannot be termed as Bye-laws of the Institution/Respondent No. 4. 25. In the Articles of Association, it is mentioned that the functions and powers of the Secretary and the Principal will be determined by the Board of Governor from time to time. The Managing Committee may make recommendations from time to time. However, there is nothing on record to suggest that the Board of Governors, had ever delegated its power to the Principal to determine the conditions of services of the employees. 26. Further, the above mentioned so-called bye-laws were framed in the year 1964 i.e., much prior to coming into force of College Code, and the Counsel for the Institution/Respondent No. 4 could not point out any provision of law, to show that the above mentioned Executive/Office Instructions issued by the Principal, Samrat Ashok Technological Institute would override the College Code. 27. By Notification dated 10th April 2007, Statute 30 was framed in exercise of powers under Section 38(1) read with Section 37 of Rajiv Gandhi Proudyogiki Vishwavidyalaya Adhiniyam, 1998. Statute 30 governs the functioning of the "Autonomous College" as well as "Private College" which is running on self financed scheme. Although the Institute/respondent No. 4, has taken a stand that they are not governed by Statute 30, but they have not disclosed any provision, which takes away the Institute/respondent No. 4, from the purview of Statute 30. Even the Counsel for the Institute/respondent No. 4 had relied upon certain provisions of Statute 30. Further, Clause 3 of the Statute 30 provides as under: 3. The College Code shall apply to all Colleges admitted to the privileges of the University excepting the colleges maintained or manage by the State Government or a Municipal Corporation or the University. 28. Since, the Institute/respondent No. 4 is affiliated to Rajiv Gandhi Proudyogiki Vishwavidyalaya, thus, it is clear that the Institute/respondent No. 4 is admitted to the privileges of the University, therefore, it is held that the College Code is applicable to Institute/respondent No. 4. 29. 28. Since, the Institute/respondent No. 4 is affiliated to Rajiv Gandhi Proudyogiki Vishwavidyalaya, thus, it is clear that the Institute/respondent No. 4 is admitted to the privileges of the University, therefore, it is held that the College Code is applicable to Institute/respondent No. 4. 29. It is the submission of the Counsel for the Institute/respondent No. 4 that since, the appointment of the petitioner was a contractual service, therefore, no public element is involved, thus, the writ petition is not maintainable. It is the case of the Institute/respondent No. 4, that the judgment passed by the Supreme Court in the case of Marwari Balika Vidyalaya (Supra) is distinguishable because in the present case the College Code is not applicable and as per the so-called bye-laws prepared and signed by the Principal, the services of a confirmed employee can be terminated by giving a three months notice, or advance salary in lieu of notice and since, there is no provision to provide security of tenure to the employees of the Institute/respondent No. 4, therefore, the ratio of law laid down in Marwari Balika Vidyalaya (Supra), would not be applicable to respondent No. 4, because only those Institutes which are having adequate precautions to safeguard the interests of the employees, would be covered by the judgment passed by the Supreme Court in the case of Marwari Balika Vidyalaya (Supra). 30. Per contra, it is submitted by the Counsel for the petitioner, that not only adequate safeguards in the service conditions of the teaching staff have been provided in the College Code, but the Supreme Court in the judgment passed in the case of Ramakrishna Mission (Supra) has not taken note of the law laid down by the Supreme Court in the case of Marwari Balika Vidyalaya (Supra). It is further submitted that the judgment in the case of Marwari Balika Vidyalaya (Supra) was delivered on 14-2-2019, whereas the judgment in the case of Ramakrishna (Supra) was delivered on 28-2-2019. 31. Considered the submissions made by the Counsel for the parties. 32. It is further submitted that the judgment in the case of Marwari Balika Vidyalaya (Supra) was delivered on 14-2-2019, whereas the judgment in the case of Ramakrishna (Supra) was delivered on 28-2-2019. 31. Considered the submissions made by the Counsel for the parties. 32. The only contention of the Counsel for the respondents No. 3 and 4 to distinguish the ratio of law laid down in the case of Marwari Balika Vidyalaya (Supra) is that no safeguard has been provided to the employees and even the services of a confirmed employee can be terminated by issuing three months notice or three months salary in lieu of notice. 33. This submission made by the Counsel for the respondent No. 4 cannot be accepted. As already pointed out, each and every college, whether autonomous or private, is under obligation to follow the college code and certain safeguards have been provided under the College Code, therefore, it cannot be said that there are no safeguards on the service conditions of the employees of respondent No. 4. Further, this Court has already come to a conclusion, that the so-called bye-laws which were prepared in the year 1964, were not prepared by the Board of Governors, but it was merely an Executive/Office order issued by the Principal of the respondent No. 4. Further, in the light of clause 3 of Statute 30, it is clear that the bye-laws of the respondent No.4 have no overriding effect. The respondent No. 4 has also admitted that the grant received by it, is utilized for making payment of salary to the teaching staff. In the year 2018, Rs.4,20,91,557 were spent towards Teaching Staff Salary and the respondent No. 4 had received the grant-in-aid of Rs. 4,95,99,999.00. 34. The Supreme Court in the case of Andi Mukta Sadguru Shree Muktagjee Vandas Swami Suvarna Jayati Mahotsav Smarak Trust Vs. V.R. Rudani, reported in (1989) 2 SCC 691 has held as under: 15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party. * * * 17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The "public authority" for them means everybody which is created by statute -- and whose powers and duties are defined by statute. So government departments, local authorities, police authorities, and statutory undertakings and corporations, are all "public authorities". But there is no such limitation for our High Courts to issue the writ "in the nature of mandamus". Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to "any person or authority". It can be issued "for the enforcement of any of the fundamental rights and for any other purpose". 18. Article 226 reads: "226. This is a striking departure from the English law. Under Article 226, writs can be issued to "any person or authority". It can be issued "for the enforcement of any of the fundamental rights and for any other purpose". 18. Article 226 reads: "226. Power of High Courts to issue certain writs.--(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. * * * 19. The scope of this article has been explained by Subba Rao, J., in Dwarkanath v. ITO: (SCR pp. 540-41) "This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself." 20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Such a construction defeats the purpose of the article itself." 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. 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: (SCC p. 589, para 6 : SCR p. 778) "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. (Cf. Halsbury's Laws of England, 3rd Edn., Vol. II, p. 52 and onwards.)" 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. 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. The Supreme Court in the case of Marwari Balika Vidyalaya (Supra) has held as under: 12. Firstly, we examine the question with respect to the maintainability of the Writ Application. It has been clearly averred in the Writ Application that the appointment was, at first instance, on probation for two years. It is not in dispute that in the instant case that approval of the appointment had been made with retrospective effect 1st January 2001 and no approval admittedly has been obtained for the purpose of removal passed on 20.2.2001. There is a clear pleading in the Writ Application that the approval was necessary, its denial in reply is evasive. No such approval had been obtained in the instant case. It is apparent that the Government has also pleaded in its reply that approval of appointment was made necessary considering the arbitrariness in the appointments which was prevailing, and once approval for appointment was necessary there is no doubt that approval for removal was also necessary, which was not obtained in the instant case. 13. In Raj Kumar v. Director of Education & Ors. (supra) this Court held that Section 8(2) of the Delhi School Education Act, 1973 is a procedural safeguard in favour of employee to ensure that order of termination or dismissal is not passed without prior approval of Director of Education to avoid arbitrary or unreasonable termination/dismissal of employee of even recognised private school. (supra) this Court held that Section 8(2) of the Delhi School Education Act, 1973 is a procedural safeguard in favour of employee to ensure that order of termination or dismissal is not passed without prior approval of Director of Education to avoid arbitrary or unreasonable termination/dismissal of employee of even recognised private school. Moreover, this Court also considered the Objects and Reasons of the Delhi School Education Act, 1973 and came to the conclusion that the termination of service of the driver of a private school without obtaining prior approval of Director of Education was bad in law. This Court observed: "45. We are unable to agree with the contention advanced by the learned counsel appearing on behalf of the respondent School. Section 8(2) of the DSE Act is a procedural safeguard in favour of an employee to ensure that order of termination or dismissal is not passed without the prior approval of the Director of Education. This is to avoid arbitrary or unreasonable termination or dismissal of an employee of a recognised private school." 14. This Court has laid down in Raj Kumar v. Director of Education & Ors. (supra) that the intent of the legislature while enacting the Delhi School Education Act, 1973 (in short, 'the DSE') was to provide security of tenure to the employees of the school and to regulate the terms and conditions of their employment. While the functioning of both aided and unaided educational institutions must be free from unnecessary Governmental interference, the same needs to the reconciled with the conditions of employment of the employees of these institutions and provision of adequate precautions to safeguard their interests. Section 8(2) of the DSE Act is one such precautionary safeguard which needs to be followed to ensure that employees of educational institutions do not suffer unfair treatment at the hands of the management. 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. (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. 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 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. 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) 35. So far as the judgment dated 2-12-2019 passed by this Court in the case of Smt. Rekha Bhalla Vs. The DPS Society F Block and others in W.P. No. 25485/2019 is concerned, the respondent therein, was a non-aided School and the relief sought was for a direction to pay her outstanding dues upon her resignation. No public element or Public Law was involved, and accordingly, it was held that the writ petition for recovery of outstanding dues upon resignation is not maintainable. 36. Thus, it is clear that all aided Institutions are governed by the Rules and Regulations of the affiliating University and their activities are closely supervised by the University in a similar manner as government institutions discharge a public function of imparting education to students. 37. Accordingly, it is held that since, the respondent No. 4 is governed by Statute 30 framed by the State Govt. under Section 38(1) read with Section 37 of Rajiv Gandhi Proudogiki Vishwavidyalaya Adhiniyam, 1998, and the respondent No. 4 is also getting grant-in-aid, as well as the service conditions of the teaching staff is regulated and safeguarded as per the provisions of College Code, thus, the respondent No. 4 is a State within the meaning of Article 12 of the Constitution of India and therefore, is amenable to writ jurisdiction. 38. 38. So far as the merits of the case are concerned, the petitioner has relied upon Clause 14 of Statute 30 which provides as under: 14(a). The Governing Body shall be responsible for the general administration of the college including:- (i).......... (ii)......... (iii)........ (iv) Appointment, promotion, suspension and punishment of the teachers of the College and any other action affecting their services: Provided that the Governing Body of "Grantee College" shall take these actions in accordance with the provisions of Madhya Pradesh Ashasakiya Shikshan Sanstha (Adhyapakon tatha Anya Karamchariyon Ke Vetan Ka Sanday) Adhiniyam, 1978 and the rules framed there under. 39. Clause 33(1) of Statute 30 reads as under: 33(1) The service of a teacher other than person appointed on temporary or part-time basis or on probation shall not be terminated after confirmation except on the following grounds and without the approval of the Executive Council. (i) Misconduct including willful neglect of duty (ii) A breach of the terms of the contract. (iii) Physical or mental unfitness. (iv) Incompetence provided that the plea of incompetence shall not be used against a teacher after two years of his confirmation. (v) Abolition of the post with the prior approval of the Executive Council. Provided that termination of service on any ground falling under (i) or (iv) above shall not be ordered without holding an inquiry in which the teacher is given a statement of charges against him and is afforded reasonable opportunity to defend himself. Provided also that action to terminate the service of a teacher on the ground of physical or mental unfitness shall not be taken except on the basis of a report of Medical Board of the State Government. (2) Except where the services of a teacher are terminated on the ground of misconduct including neglect of duty or breach of the terms of contract neither the Governing Body nor the teacher shall terminate the agreement except by giving to the other party three calendar month's notice or by paying to the other party a sum equal to thrice the monthly salary which the teacher concerned is than earning. The period of notice shall not include the summer vacation or any part thereof. 40. The period of notice shall not include the summer vacation or any part thereof. 40. Clause 35 of Statute 30 reads as under: 35(1) - The appointing authority may, for good and sufficient reason, impose on an employee of the College (including a teacher) the following penalties: (a) (b) (c) (d) (e) (f) (g) (2) The appointing authority may institute disciplinary proceedings against an employee of the college. (3) No Order imposing any of the penalties specified in sub-paragraph (1) above than fine shall be made except in accordance with the procedure for imposing penalties on Government servant prescribed by the Madhya Pradesh Government and in force at the time the appointing authority orders an inquiry against the college employee concerned. Provided that No. ........... (4) Following lapses would constitute misconduct on the part of teacher of the College, including the Principal: (i) Failure to perform his academic duties such as Lecturers, demonstrations, assessment, guidance, invigilation etc. (ii)............ (iii)........... (iv)........... (v).......... 41. It is submitted by the Counsel for the Petitioner, that it is clear from the minutes of the meeting of the Screening Committee that the services of the petitioner have been discharged on the basis of the allegations made in the minutes of the Screening Committee, therefore, the impugned order is bad in law. 42. The copy of Minutes of Screening/Reviewing Committee held on 10-10-2019 which has been filed in W.P. No.18995/2020 (Dr. Alok Jain Vs. State of M.P. and others), reads as under: Dr. Lokesh Bajpai (Petitioner in W.P. No. 15531 of 2020) He is Professor in Mechanical Engineering department. He is suffering from serious terminal ailments as is evident from the record of Medical papers in the service record. The present salary of Dr. Lokesh Bajpai is Rs.1,99,073/- per month. He was initially appointed on the post of Lecturer w.e.f. 23.8.1985 and was promoted as Senior Lecturer on 24-3-1993, as Reader on 19-12-1996 and thereafter, as professor on 19-12-2014. He has completed more than 24 years of service. There is nothing in the record which warrants his retention in the institute, his utility to the institute is on a sharp decline and it would be in the interest of institute to discharge him from service in accordance with the terms of the letter of appointment by giving him three months advance salary in lieu of notice period. There is nothing in the record which warrants his retention in the institute, his utility to the institute is on a sharp decline and it would be in the interest of institute to discharge him from service in accordance with the terms of the letter of appointment by giving him three months advance salary in lieu of notice period. In addition he would also be entitled to gratuity plus PF which comes to Rs. 50 Lacs approximately. Professor Sandeep Jain (Petitioner in W.P. No. 13260 of 2020):- He was appointed as Lecturer on 12-9-1988 promoted as Reader on 12-9-2000 and again promoted as Associate Professor on 1-1-2006 in the Department of Mechanical Engineering. He has completed 31 years of service. His utility to the institute has diminished over a period of time, as he is unable to devote time due to his engagements elsewhere. It would be in the interest of Institution to discharge him from service in accordance with the terms of the letter of appointment by giving him three months advance salary in lieu of notice period. IN additional he would also be entitled to gratuity plus PF which comes to Rs. 40 Lacs approximately. Dr. Rajendra Dubey (Petitioner in W.P. No. 19212 of 2020) He is presently working on the post of Professor in applied Mathematics Department. He was initially appointed on the post of Lecturer w.e.f. 5-10-1985 for a period of 89 days which continued upto 17-8-1989, thereafter, he was appointed as Lecturer (Regular) w.e.f. 18-8-1989 and promote, as Senior Lecturer, on 5-10-1993, as Reader on 9-10-1998 and as Professor on 9-10-2006. Presently his salary is of Rs.1,94,958/-. He is under suspension w.e.f. 5-1-2018. He has completed 34 years of service. Dr. Rajendra Dubey suo-moto became the Director of the institution on 3-1-2018 and sealed the chamber of the Director and also the President of the Society. He is involved in negative activities against the management of the institution. He may be discharged from service in accordance with the terms of the letter of appointment by giving three months advance salary in lieu of notice period. In additional he would also be entitled to gratuity plus PF which comes to Rs. 45 Lacs approximately. Dr. Alok Jain (Petitioner in W.P. No. 18995 of 2020) He was appointed as Lecturer on 16-2-1989 for a period of 89 days. In additional he would also be entitled to gratuity plus PF which comes to Rs. 45 Lacs approximately. Dr. Alok Jain (Petitioner in W.P. No. 18995 of 2020) He was appointed as Lecturer on 16-2-1989 for a period of 89 days. He was appointed as Lecturer (Regular) on 18-8-2019 (Appears to be mistake in date). He was promoted, as Senior Lecturer on 16-2-1995, as Reader on 21-12-1996 and as Professor on 9-10-2006. At present his salary is of Rs. 2,04,125/-. He has completed the service of more than 30 years. Record reveals that Dr. Alok Jain was involved in negative activities against the management of the institution. He suo-moto became the Director of the institution on 3-8-2016 and went away with the keys of the chamber of Director after locking the same. As he has already put in more than 30 years of service, in the larger interest of the institute he may be discharged from service in accordance with the terms of the letter of appointment by giving three months advance salary in lieu of notice period. In addition he would also be entitled to gratuity plus PF which comes to Rs. 50 Lacs approximately. Dr. Yogendra K. Jain (Petitioner in W.P. No. 18995 of 2020) He is professor in Electronic and Instrumentation Department. He was initially appointed on 19-11-1992 as Lecturer for a period of 89 days which continued upto 7-1-1996. He became regular Lecturer w.e.f. 8-1-1996, he was promoted, as Senior Lecturer on 19-11-1998, as Associate Professor on 1-1-2006 and as Professor on 15-3-2010. His present salary is of Rs. 1,89,836. He has completed 20 years of service and also 50 years of age. The record reveals that he has not been able to maintain a satisfactory level of utility to the institution and in the interest of the institution he may be discharged from service in accordance with the terms of the letter of appointment by giving three months advance salary in lieu of notice period. In additional he would also be entitled to gratuity plus PF which comes to Rs. 50 Lacs approximately. Smt. Vibha Jain (Petitioner in W.P. No. 19866 of 2020) She was initially appointed on 1-2-1996 as Lecturer for a period of 89 days. She continued upto 23-12-2002 i.e., for a period of more than 6 years on the basis of appointment of 89 days. 50 Lacs approximately. Smt. Vibha Jain (Petitioner in W.P. No. 19866 of 2020) She was initially appointed on 1-2-1996 as Lecturer for a period of 89 days. She continued upto 23-12-2002 i.e., for a period of more than 6 years on the basis of appointment of 89 days. Thereafter, w.e.f. 26-12-2002 she continued as Lecturer till further orders Thereafter, w.e.f. 27-12-2007 she was promoted as Reader and w.e.f. 27-12-2010 she was promoted as Associate Professor. Before her appointment no advertisement was published, no applications were invited and no selection process was followed and she was never selected by any Selection Committee either as a Lecturer or as an Associate Professor. Smt. Vibha Jain was initially appointed in the department of Master in Computer Application (MCA) in which the professor PC. Jain was head of the department. Since, Smt. Vibha Jain, was the sister-in-law of Professor R.C. Jain, therefore, she was appointed as Lecturer without following the process. Record reveals that when Professor R.C. Jain was appointed as Director of the institute, at that time she was promoted, as Associate Professor without following the process of law. Record also reveals that Smt. Vibha Jain is suffering from serious medical ailment and other health issues. Smt. Vibha Jain has completed 23 years of service. Her present salary is of Rs. 1,56,078 per month. Her services may be discharged with in accordance with the terms of the letter of appointment by giving three months advance salary in lieu of notice period. In additional, she would also be entitled to gratuity plus PF which comes to Rs. 30 Lacs approximately. 43. When Shri K.N. Gupta, Senior Advocate, was requested to point out any provision of law which permits the constitution of Screening Committee, and also permits/empowers the respondent No. 4 to discharge the petitioner(s), then he fairly conceded, that there is no provision in Statute 30 empowering the institute to discharge the teaching staff on the basis of screening. The Counsel for the respondent No. 4 also could not point out any provision which may be akin to F.R. 56 or Rule 42 of M.P. Civil Services (Pension) Rules. Thus, this Court is of the considered opinion, that the constitution of Screening Committee itself was bad in law. The Counsel for the respondent No. 4 also could not point out any provision which may be akin to F.R. 56 or Rule 42 of M.P. Civil Services (Pension) Rules. Thus, this Court is of the considered opinion, that the constitution of Screening Committee itself was bad in law. Further, in absence of any provision/authority to discharge a teaching staff after having put in more than 25 years of service, the impugned orders dated 17-8-2020 and 22-9-2020 are bad in law. Further, it is clear from the minutes of the meeting of Screening Committee that the utility of the petitioners, namely, Dr. Sandeep Jain, Dr. Lokesh Bajpai and Dr. Rajendra K. Dubey, were found to be on sharp decline. Similarly, the activities of Dr. Alok Jain and Dr. Rajendra Dubey were found to be negative towards the respondent No. 4, whereas Smt. Vibha Jain was found to medically unfit. 44. The allegations of sharp decline in utility and negative activities amount to Misconduct including willful neglect of duty, and incompetence. As per Clause 33(1), termination of service on the above mentioned grounds cannot be ordered without holding an enquiry in which the teacher is given a statement of charges against him and is afforded reasonable opportunity to defend himself. Further as per Clause 35(3) of Statute 30, the Disciplinary Enquiry has to be conducted in accordance with the procedure for imposing penalties on Government Servant prescribed by the Madhya Pradesh Government. In the present case, admittedly no disciplinary enquiry has been conducted and the petitioner has been discharged. It is submitted by the Counsel for the respondent No. 4 that the petitioner has not been discharged in the light of the minutes of the Screening Committee. However, this submission made by the Counsel for the respondent No. 4 is contrary to its return as well as Additional Return. Para (ix) and (x) of return reads as under: (ix) Accordingly, the screening Committee submitted separate reports for class I, Class II, Class III and Class IV employees entailing names of employees recommended for being discharged from service as per the terms of the letter of appointment. (x) Accordingly, the BOG vide its resolution dated 22-10-2019 approved the proposal of the screening committee relating to discharge of employees in the interest of the institution. (x) Accordingly, the BOG vide its resolution dated 22-10-2019 approved the proposal of the screening committee relating to discharge of employees in the interest of the institution. A copy of the minutes of meeting of the BOG dated 22-10-2019 is annexed herewith and marked as Annexure R/7. 45. So far as the discharge of Smt. Vibha Jain is concerned, the same is primarily based on her medical ailments. Clause 33(1)(v) Second Proviso provides, that the services on the ground of medical ailment shall not be terminated except on the basis of a report of Medical Board of the State Government. Neither in the minutes of the Screening Committee, nor in the return, the respondent No. 4 has tried to justify that Smt. Vibha Jain is medically unfit. Further, there is no report of Medical Board of the State Government. 46. Therefore, after examining the impugned orders from every possible angle, this Court is of the considered opinion, that the provisions of Clause 33 of Statute 30 were not followed and the services of the petitioner could not have been terminated without holding an enquiry. Since, the impugned order has been passed on the basis of recommendations made by the Screening Committee, by which the allegations of Misconduct, breach of contract and incompetence have been leveled, therefore, the services of the petitioner could not have been terminated even after taking advantage of Clause 33(2) of Statute 30. 47. It is next contended by the Counsel for the respondent No. 4, that the petitioner has suppressed the fact that he has already approached the Kulapati, therefore, the petition is liable to be dismissed on this ground only. 48. Considered the submission made by the Counsel for the respondent No. 4. 49. It is true that one who comes to the Court must come with lean hands, however, every suppression of fact may not entail the dismissal of writ petition. Only that suppression of fact would be atal which is material in nature, and not every suppression of fact. The Supreme Court in the case of S.J.S. Business Enterprises (P) Ltd. v. State of Bihar, reported in (2004) 7 SCC 166 has held as under: 13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. The Supreme Court in the case of S.J.S. Business Enterprises (P) Ltd. v. State of Bihar, reported in (2004) 7 SCC 166 has held as under: 13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken........... 50. The Counsel for the respondent No. 4 could not point out as to how, the suppression of approaching the Kulapati is a material suppression of fact, specifically when no Tribunal has been constituted as per Clause 42 of Statute 30 so far. Accordingly, this submission made by the Counsel for the respondent No. 4 is rejected. 51. So far as the question of estoppel or waiver to challenge the discharge is concerned, it is not the case of the respondent No. 4, that the petitioner has voluntarily accepted the three months advance salary in lieu of notice. On the contrary, it is case of the petitioner, that the three months advance salary has been deposited by the respondent No. 4, unilaterally in the service account without there being any consent or overt act on the part of the petitioner. Further, the petitioner has also stated that he is ready and willing to refund the same. Thus, where the three months advance salary was directly credited in the bank account of the petitioner, without there being any overt act on his part, this Court is of the considered opinion, that the petitioner has not waived or is estopped from challenging the impugned discharge order. Further, as already pointed out, the Counsel for the respondent No. 4, had also not pressed this ground during the course of his arguments. 52. So far as the precarious financial condition of the respondent No. 4 is concerned, the petitioner has been discharged on the basis of the recommendations of the Screening Committee. Further, as already pointed out, the Counsel for the respondent No. 4, had also not pressed this ground during the course of his arguments. 52. So far as the precarious financial condition of the respondent No. 4 is concerned, the petitioner has been discharged on the basis of the recommendations of the Screening Committee. Further, there is nothing in Statute 30 to the effect that owing to the financial difficulties, the institution can discharge the teaching staff. It is not the case of the respondent No. 4 that the petitioner was not working against any sanctioned post or was surplus. On the contrary, it is clear from the minutes of the Screening Committee, that all the petitioners were granted multiple promotions from time to time. It is not the case of the respondent No. 4 that after discharge of the petitioner, no fresh appointment shall be made or the particular faculty would be closed. Further, the respondent No. 4 is already getting grant-in-aid which is sufficient to make payment of salary of teaching staff, as is evident from balance sheets of various years. 53. So far as the question of alternative remedy is concerned, it is submitted by the Counsel for the respondent No. 4 that under Clause 42 of College Code, in case of dispute arising out of contract of service between the Governing Body of the College and any of its teachers shall at the request of the teacher or the Governing Body be referred by the Kulpati to a Tribunal consisting of one nominee of the Kulpati other than a member of the Executive Council who shall be the Chairman and one nominee each of the teacher and the Governing Body and the decision of the Tribunal shall be final. It is submitted that since, the petitioner has not availed the alternative remedy, therefore, the petition is liable to be dismissed on this ground only. 54. Considered the submission made by the Counsel for the respondent No. 4. 55. This Court has already come to a conclusion that the entire act of the respondent No. 4 is without jurisdiction. Alternative Remedy is not an absolute bar. The Supreme Court in the case of M.P. State Agro Industries Development Corpn. Ltd. v. Jahan Khan, reported in (2007) 10 SCC 88 has held as under: 12. 55. This Court has already come to a conclusion that the entire act of the respondent No. 4 is without jurisdiction. Alternative Remedy is not an absolute bar. The Supreme Court in the case of M.P. State Agro Industries Development Corpn. Ltd. v. Jahan Khan, reported in (2007) 10 SCC 88 has held as under: 12. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See Whirlpool Corpn. v. Registrar of Trade Marks, Harbanslal Sahnia v. Indian Oil Corpn. Ltd., State of H.P. v. Gujarat Ambuja Cement Ltd. and Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd.) 56. Further, it is not the case of the respondent No. 4 that Tribunal has been constituted under clause 42 of Statute 30. Accordingly, it is held that the order dated 17-8-2020 which was amended by order dated 22-9-2020, thereby discharging the petitioner (Sandeep Jain) is without jurisdiction and is bad in law. Consequently, they are hereby quashed. 57. As the entire action of the respondent No. 4 has been found to be bad and without jurisdiction, therefore, the petitioner shall be entitled for entire back wages, as the petitioner was not permitted to discharge his duties, for no good reasons. Consequently, they are hereby quashed. 57. As the entire action of the respondent No. 4 has been found to be bad and without jurisdiction, therefore, the petitioner shall be entitled for entire back wages, as the petitioner was not permitted to discharge his duties, for no good reasons. The advance salary of three months which has been paid by the respondent No. 4 shall be liable to be adjusted against the arrears of back wages. 58. With aforesaid observations, the petition is Allowed. No order as to Costs.