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2023 DIGILAW 1746 (ALL)

Pratibha Tripathi v. Union Of India

2023-07-21

MANJIVE SHUKLA

body2023
JUDGMENT : 1. Heard learned counsel appearing for the petitioner and Mr. Jai Prakash Rai, learned counsel appearing for the Respondent No.1. 2. Petitioner through this writ petition has challenged the retirement notice dated 28th March, 2023 issued by the Manager, Jyoti Niketan School, Atlas Pokhra, Azamgarh, whereby petitioner has been directed to retire from service on 27.6.2023. 3. Facts of the case, in brief, are that Jyoti Niketan School, Atlas Pokhra, Azamgarh is being run by a private society registered under the Societies Registration Act, 1860 and is recognized by the Council for Indian School Certificate Examination, New Delhi. 4. Petitioner was appointed on the post of Assistant Teacher by the Principal of Jyoti Niketan School vide appointment order dated 1.7.2000. Petitioner pursuant to her appointment order continued to work in the school and as per her date of birth she was to attain the age of 60 years on 27.6.2023, therefore the Manager of the school issued a letter to the petitioner on 28.3.2023 thereby petitioner was informed that she after attaining the age of superannuation will retire on 27.6.2023. 5. Learned counsel appearing for the petitioner has vehemently argued that since the teachers working in the institutions of the State Government as well as teachers working in the schools of U.P. Basic Education Board are to retire at the end of academic session and further since academic session in the schools of the State Government starts from 1st of April and ends on 31st of March in the next year and since the petitioner’s date of retirement falls on 27.6.2023, therefore she is entitled to continue till 31st March, 2024. 6. Learned counsel appearing for the Respondent No.1 has vehemently argued that Jyoti Niketan School, Atlas Pokhra, Azamgarh is a school run by a private society and is recognized by the Council for Indian School Certificate Examination, New Delhi, therefore the rules and regulations of the State Government applicable over the schools run by U.P. Basic Education Board and schools run by the State Government are not applicable over the school of the petitioner. 7. Learned counsel appearing for the petitioner could not point out as to how the rules of the Government of U.P. applicable to the government schools and the schools run by U.P. Basic Education Board are applicable over the school of the petitioner. 7. Learned counsel appearing for the petitioner could not point out as to how the rules of the Government of U.P. applicable to the government schools and the schools run by U.P. Basic Education Board are applicable over the school of the petitioner. Learned counsel for the petitioner has only submitted that the schools which are recognised by the Council for Indian School Certificate Examination, New Delhi are required to take “No objection certificate” from the State Government and therefore, all the rules and regulations applicable over the schools of the State Government are applicable over the school of the petitioner. 8. Learned counsel appearing for the Respondent No.1 has submitted that merely because the State Government has given ‘No objection certificate’ for recognition of the school of the petitioner by the Council for Indian School Certificate Examination, New Delhi, the rules and regulations applicable over the schools of the State Government and the schools run by the U.P. Basic Education Board, Prayagraj shall not apply over the school of the petitioner. 9. Learned counsel appearing for the Respondent No.1 has submitted that even otherwise the Hon’ble Supreme Court vide its judgment rendered in the case of St. Mary's Education Society and another vs. Rajendra Prasad Bhargav and others, reported in (2023) 4 SCC 498 has categorically held that the service disputes of the employees working in the schools run by the private societies are not amenable to writ jurisdiction of the High Court under Article 226 of the Constitution of India. Relevant portions of the judgment rendered in the case of St. Mary’s Education Society (supra) are extracted as under:- “2. In the present appeal, two pivotal issues fall for consideration of this Court: 2.1. (a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution? 2.2. (b) Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution? 3. In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction? 4. The aforesaid two questions, though not vexed, nevertheless despite plethora of case laws, always give rise to a debate. In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction? 4. The aforesaid two questions, though not vexed, nevertheless despite plethora of case laws, always give rise to a debate. xxxxxxxxxxxxxxxx 75. We may sum up our final conclusions as under: 75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public. 75.2. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of “State” within the expansive definition under Article 12 it was found that the action complained of has public law element. 75.3. It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service. 75.4. Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee or a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether “A” or “B” is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non-teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered with by the court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty. 75.5. From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character. 76. In view of the aforesaid discussion, we hold that the learned single Judge of the High Court was justified in taking the view that the original writ application filed by the respondent No. 1 herein under Article 226 of the Constitution is not maintainable. The Appeal Court could be said to have committed an error in taking a contrary view. 10. The Appeal Court could be said to have committed an error in taking a contrary view. 10. I have considered the submissions advanced by learned counsels appearing for the parties and I find that school of the petitioner i.e. Jyoti Niketan School is being run by a private body and is recognized by the Council for Indian School Certificate Examination, New Delhi. I further find that petitioner's service conditions in Jyoti Niketan School are not governed by any statutory provisions. 11. Submission made by learned counsel appearing for the petitioner that rules and regulations made by the State Government applicable over the schools run by the State Government and the schools run by U.P. Basic Education Board are applicable over the school of the petitioner, is absolutely misconceived as admittedly the school of the petitioner is run by a private society and is recognised by the Council for Indian School Certificate Examination, New Delhi, therefore it is patently manifest that rules and regulations made by the State Government in respect of the academic session and also in respect of the teachers that if the date of retirement falls in between the academic session, they will be allowed to continue till the end of academic session, shall not be applicable over the employees of the petitioner’s school. 12. Hon'ble Supreme Court vide its judgment rendered in the case of St. Mary’s Education Society (supra) has categorically held that where service conditions of employee working in a private institution are not governed by statutory provisions, then the service dispute of the said employee is not amenable to writ jurisdiction of High Court enshrined under Article 226 of the Constitution of India. 13. Since the service conditions of the petitioner are not governed by any statutory provisions, therefore the present writ petition filed by the petitioner is not maintainable and is liable to be dismissed. 14. In view of the aforesaid law laid down by Hon'ble Supreme Court, writ petition filed by the petitioner is not maintainable and thus is dismissed.