Ms. Geeta Pushp vs Union Of India And 3 Others
2017 Latest Caselaw 6238 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 19
 

 
Case :- WRIT - A No. - 51560 of 2017
 

 
Petitioner :- Ms. Geeta Pushp
 
Respondent :- Union Of India And 3 Others
 
Counsel for Petitioner :- Kiran Kumar Arora
 
Counsel for Respondent :- A.S.G.I.,Vikas Rana
 

 
Hon'ble Suneet Kumar,J.

The fourth respondent, Army Public School, an institution managed by the second respondent, Army Welfare Education Society, a society duly registered under the Societies Registration Act, 1860.

Petitioner is a teacher P.G.T. (English) in the institution.

It is pleaded that the Rules and Regulations framed by the management of the institution governs the service conditions of the petitioner. The society manages 128 Army Schools and 12 Army Professional colleges spread all over the country. More than two lakh children are studying in these institutions. The institution is duly recognized and affiliated to the Central Board of Secondary Education1.

The contract of appointment of the petitioner would reflect that petitioner was appointed on 8 August 1994 on terms and conditions mentioned in the Schedule to the Agreement. The agreement provides that the Rules and Regulations as applicable to Army School shall apply to the petitioner.

Rule 86 provides for age of retirement of Principal and teaching staff on reaching 62 years.

By means of the instant writ petition, petitioner is assailing the communication dated 21 August 2017 issued by the Principal of the institution informing the petitioner that she would retire on completing 60 years on 10 November 2017, consequently, would relinquish office on the last date of the month in accordance with Article 139(a) of Rules and Regulations of Army Public Schools (19 September 2011 edition) as amended vide letter dated 5 July 2017 and Rule 30 (Retirement) of CBSE Affiliation-By-laws as amended vide CBSE circular dated 20 December 2016.

Learned counsel appearing for the respondents would submit that neither CBSE has been made a party nor the circular of the CBSE pursuant to which amendment has been made in the Rules has been assailed by the petitioner. Learned counsel would further submit that the fourth respondent being a private institution, therefore, the writ petition for enforcement of service contract would not be maintainable under Article 226.

I have heard learned counsel for the parties and perused the pleading and the documents brought on record with the assistance of learned counsel for the parties.

The sole question for determination is as to whether the writ petition against the fourth respondent, a private institution, would be maintainable by an employee or teacher for enforcement of service contract.

In Fedral Bank Ltd. v. Sagar Thomas & others2 Supreme Court culled out the categories of body/ persons who would be amenable to writ jurisdiction of the High Court. This can be found in para 18 of the judgment, specifying eight categories. Para 18 is extracted:

"18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function."

The Court clarified that though writ can be issued against any private body or person, the scope of mandamus is limited to enforcement of public duty. It is the nature of duty performed by such person/body which is the determinative factor as the Court is to enforce the said duty, therefore, the identity of the authority against whom the right is sought is not relevant. Such duty, the Court clarified, can either be statutory or even otherwise, but, there has to be public law element in the action of that body.

Where a person or authority is a 'State' within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body, however, even in such cases writ would not lie to enforce private law rights, therefore, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law. (Ref: Praga Tools Corporation v. C.V. Imanual3, Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others vs. V.R. Rudani and others4 and K.K. Saxena vs. International Commission on Irrigation and drainage5 and Binny Ltd. & another v. V. Sadasivan & others6, BCCI Versus Cricket Association of India7 and Janet Jeyapaul Versus SRM University and other8).

Full Bench of this Court in M.K. Gandhi and others Versus Director of Education (Secondary), U.P., Lucknow and others9, upon considering large number of judgments of the Supreme Court, opined that private unaided intermediate institution would not be a 'State' within the meaning of Article 12 of the Constitution, however, the Central Board of Secondary Education was held to be a State within the meaning of Article 12 of the Constitution, therefore, was amenable to the writ jurisdiction. The service conditions or the contract of service of the teachers appointed by the private school is not enforceable in writ jurisdiction, the remedy would lie before the competent civil court.

The Full Bench decision was challenged before the Supreme Court in Committee of Management, Delhi Public School & Ors. Vs. M.K. Gandhi & Anr.10, the Court affirmed part of the judgment holding that the writ petition against Delhi Public School was not maintainable, however, set aside other part holding that the writ petition is maintainable against the Central Board of Secondary Education (CBSE).

In Ramesh Ahluwalia vs State of Punjab and others11, the petition under Article 226 of the Constitution against private unaided educational institution was held to be maintainable on the ground of performance of public functions.

In Vatsal Gupta Vs. State of U.P and others12, the Single Judge declined to issue a writ of mandamus to a private minority unaided institution refusing to grant admission to the student (petitioner therein) to standard XI for the reason that rules of the institution for admitting the students is not a " positive obligation based on public law element.........., the fact that a writ petition is maintainable under Article 226 of the Constitution does not ipso facto lead to the issuance of a writ". The petition was consequently dismissed as it was held that the admission to standard XI is a fresh admission and not an automatic promotion.

The Division Bench in Army School, Kunraghat Versus Smt. Shilpi Paul13, held that the Army School being not State within the meaning of Article 12 of the Constitution, hence, writ petition against the institution was not maintainable. The decisions rendered by the Single Judge in Smt. Rajni Sharma Versus Union of India14 and Abu Zaid Versus Principal Madrasa-Tul-Islah Sarai Mir, Azamgarh15, was overruled.

The Division Bench in Union of India and others Versus Dileep Kumar Pandey16, held that a writ at the behest of the teacher or employee to enforce the contract of service against Air Force School, Bamrauli, would not be maintainable. The remedy available to such an employee is to file a civil suit for damages, if there is any.

The Division Bench recently in Smt. Alpana Sinha Versus State of U.P. and others17, wherein, a private intermediate institution affiliated to Council for Indian School Certificate Examination (ISC) and Indian Certificate of Secondary Education (ICSE) Board, was held to be not amenable to writ jurisdiction, hence the claim of the petitioner, therein, assailing the termination order was repelled.

From the proposition of law, it is clear that an employee of a private educational institution cannot enforce service contract in writ jurisdiction. The remedy available to the petitioner is to claim damages, if permissible, in law by instituting a regular suit.

Learned counsel for the petitioner has placed reliance on a Division Bench decision rendered by the Delhi High Court in Army Welfare Education Society and another Versus Manju Nautiyal and another18, to urge that the writ petition would lie against the respondent-institution.

I have perused the decision rendered by the Delhi High Court with the assistance of learned counsel for the petitioner, though an objection was raised regarding maintainability of the writ petition, however, the parties conceded that the mandate of Delhi School Education Act, 1973, and Rules framed thereunder is applicable upon the institution which the institution is bound to comply, therefore, the court opined that writ under Article 226 would lie to enforce the Act and the Rules against the institution.

However, in the given facts, it is not the case of the petitioner that the institution is bound by statutory provision governing service condition of the petitioner.

For the reasons stated herein above, the writ petition is dismissed not being maintainable. Dismissal of the petition shall not preclude the petitioner from availing remedy in law, if available.

No cost.

Order Date :- 3.11.2017

K.K. Maurya