Allahabad High Court
Muhd. Danish vs Army Welfare Education Society ... on 11 July, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- WRIT - A No. - 4050 of 2022
Petitioner :- Muhd. Danish
Respondent :- Army Welfare Education Society And 2 Others
Counsel for Petitioner :- Akarsh Dwivedi
Counsel for Respondent :- Rajesh Tripathi
Hon'ble Manish Mathur,J.
Heard learned counsel for petitioner and Mr. Rajesh Tripathi learned counsel for respondents 1 and 3. In view of order being passed, notices to respondent No.2 stand dispensed with.
Petition has been filed seeking quashing of orders dated 18th October, 2021 and 27th November, 2021 whereby legal notice given by the petitioner to the respondent No.2 against selections made has been rejected. Vide order dated 27th November, 2021, legal notice of the petitioner has been replied to pertaining to non joining /issues of one to letter to Mr. Muhd. Danish.
Learned counsel appearing for the respondents at the very outset has raised a preliminary objection regarding maintainability of the petition with the submission that respondents are completely private institutions and are not receiving any grant in aid from either State or Central Government. He submitted that the respondent No.1 is a Society registered under the Societies Registration Act which is an independent body and against which a writ under Article 226 can not be issued. Similarly it has been submitted that the respondents 2 and 3 being the Army Public Schools of the respective districts are also independent entities and would not fall within the definition of State, Instrumentalities of State and other authorities under Article 12 of the Constitution of India. It is further submitted that even otherwise, the petition would not be maintainable at the behest of petitioner who is seeking a private service contract with the respondents and further more since the petitioner has only been selected on the post of T.G.T. Social Studies, the petition as such is also not maintainable at the behest of the selectee.
Learned counsel for respondent has placed reliance on a Full Bench decision of this Court in the case of Uttam Chand Rawat versus State of U.P. and others, Writ A No. 9814 of 2020 as well as in the case of Kadambari versus Union of India and others, Writ A No. 5575 of 2021 to substantiate his submission.
Learned counsel for petitioner in response thereto has placed reliance on the judgment rendered by this Court in the case of Rachna Gupta Versus Union of India reported in 2014(1) ILR (Allahabad) 469, Bineeta Patnaik Padhi versus Union of India reported in 2021 (2) ESC 556 of the High Court of Calcutta as well as in the case of Marwari Balika Vidyalaya versus Asha Srivastava reported in 2020 (14) SCC 449. It has been submitted by learned counsel for petitioner that even though the respondents may be a Society not under grant in aid of the government but there also a writ under Article 226 of the Constitution of India would be maintainable against such entities in case they are performing public duties. It is submitted that since selection process was done by the respondents in terms of Right to Education Act read with regulations notified by the Central Board of Secondary Education, the petitioner's right therefore comes within public duties/functions performed by the respondents and as such petition would be maintainable.
Upon consideration of submissions advanced by learned counsel for parties, material on record and the judgments adverted to, it is undisputed that the respondents are private entities, not receiving any grant in aid by either State or Central Government. The only cause of action adverted to by learned counsel for petitioner against respondents is based on the public duties being performed by the respondents as well as the factum that as per Right to Education Act, teaching would come within the scope of public duty/function.
Learned counsel for petitioner has placed reliance on the judgment rendered by Supreme Court in the case of Anandi Mukta Sadguru Shree Muktajee ... versus V.R. Rudani & others reported in 1989 (2) SCC 691 in which it has been held that no doubt Mandamus can be issued to any person or authority performing public duty, owing positive obligation to the effected party. The said writ petition was held to be maintainable since the teacher whose services were terminated by the institution affiliated to the university and was governed by the ordinances casting certain obligations which it owed to that petitioner. The aforesaid case is clearly distinguishable on facts as well as the law enunciated by Supreme Court. In the present case, petitioner has merely been selected in the selection process whereas in the case of Anadi Mukta (supra), the termination order pertaining to services of a teacher by the institution was under challenge. The aforesaid judgment clearly indicates that the petition would be maintainable in case there was certain obligations owed to the petitioner who was governed by the ordinances casing certain obligations.
In the present case, there is no obligation owed to the petitioner by the respondent institution. It is not a case of termination of services after appointment but a case of petitioner's seeking appointment on the basis of selection. As such in the respectful opinion of this Court, the judgment rendered by Supreme Court in the case of Anadi Mukta (supra) would be inapplicable in the present facts and circumstances.
Learned counsel for petitioner has also relied upon the judgment rendered by this Court in the case of Rachna Gupta (supra) wherein it has been held that petition against Army Public School is maintainable. The learned Single Judge has distinguished the earlier division bench judgment of this court in the case of Army School, Kunraghat, Gorakhpur versus Smy. Shilpi Kaur, 2005 (2) LBESR 457 (All) on the basis of subsequent judgment in the case of Shreyaskar Tripathi versus State of U.P. and others (Special Appeal No. 1501 of 2007) on the ground that subsequent to the judgment rendered in Shilpi Kaur (supra) denied to Free and Compulsory Education Act 2009 was enacted in terms of Article 21 of the Constitution of India. However the aforesaid judgment does not indicate as to whether the same was filed by an appointed teacher or by a student of the institution or whether by a person selected or appointed. There is no dispute with the aspect of the matter that a petition under Article 226 of Constitution of India is maintainable against a private institution/entity even if not being funded by the State if it is performing public duties or imparting delegated sovereign functions. As such there is no dispute with the proposition of law indicated in the case of Rachna Gupta (supra) but in the present matter, the petitioner is not an employee of the institution in question. He has merely been selected for appointment.
Hon'ble Supreme Court in the case of State of U.P. and others versus Rajkumar Sharma and others reported in (2006)3 Supreme Court Cases 330 has clearly held that a selectee does not have any right or to whom any obligation is owed by the selecting body. The only exception to that rule is where selection once made is not adhered to by the selecting body without indicating any reasons therefor.
In the present case, it is not the case of petitioner that the selection made on certain post is not being adhered to by the respondents in an arbitrary or whimsical manner. In fact there is no grievance raised or prayer made with regard to selection process which has clearly been done at the instance of the respondents.
The aforesaid aspect of the matter would also take care of the submission made by learned counsel for petitioner that his selection has been made in terms of Right to Education Act as per regulations notified by the Central Board of Secondary Education since there is no challenge to the selection process, therefore clearly said submission is not sustainable.
Consequently the writ petition being devoid of merits is dismissed as not being maintainable at the behest of petitioner.
Order Date :- 11.7.2022
Prabhat
