Allahabad High Court
Vikas Pandey vs Union Of India Through The ... on 13 February, 2023
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 5
Case :- WRIT - A No. - 3935 of 2004
Petitioner :- Vikas Pandey
Respondent :- Union Of India Through The Ministry Of Defence And 5 Ors.
Counsel for Petitioner :- Raj Kumar Pandey,P.L. Mishra,Suresh Kumar Upadhyay
Counsel for Respondent :- Dipak Seth,Akash Sinha,P.K.Sinha,Prakash Kumar Sinha,Q. Hasan,Qamar Hasan Rizvi
Hon'ble Irshad Ali,J.
1. Heard learned counsel for the petitioner, Sri PK Sinha, learned counsel for respondent Nos.2 to 6 and Sri Ambrish Rai, learned counsel for the respondent No.1.
2. The appointment of the petitioner was made on ad-hoc basis as Trained Graduate Teacher - English (TGT) for the session 1996-97. Respondent No.5 issued an advertisement in newspaper Dainik Jagran inviting applications for various posts in HAL School, Korwa, District Sultanpur (now Amethi). The petitioner submitted application to respondent No.4 for the post of TGT (English) and a letter for interview was issued to him to participate in the interview. The petitioner was interviewed by the selection committee and was appointed on ad-hoc basis as TGT (English) on 25.07.1997. PF deductions were made from August, 1997. The petitioner moved representation to respondent No.4 for regularization of his services. He also moved an application to the Principal of the institution for regularization of his service. In spite of reminders, no steps were taken for regularization of his service.
3. Respondent No.4 engaged the petitioner on contract basis from 01.07.2003 to 24.12.2003 at Rs.3600/- per month and that period was extended from 02.01.2004 to 11.05.2004 on the same honorarium. When the petitioner went to the school on 01.07.2004, his services were orally terminated by the Principal of the institution. Against oral order of termination, the present writ petition has been filed with the prayer to issue a writ, order or direction in the nature of mandamus commanding the respondents to allow the petitioner to work on the post of TGT (English) in HAL School, Korwa, District Sultanpur (now Amethi) regularly without break and also to pay salary regularly every month in accordance with law with a further prayer to issue a writ, order or direction in the nature of certiorari quashing the oral order of termination dated 01.07.2004 after summoning the original record.
4. Submission of learned counsel for the petitioner is that services of the petitioner has illegally been terminated orally. He submitted that appointment of the petitioner was made on ad-hoc basis, therefore, his service was liable to be regularized and due to non passing of order of regularization, the petitioner has suffered a lot.
5. On the other hand, Sri PK Sinha, learned counsel for the respondents submitted that appointment of the petitioner is purely temporary in nature and he has no right to the post. His engagement was till the work is available and as and when the work was not available, his services were orally been terminated. He submitted that there is no illegality in the order of oral termination and the same is just and valid.
6. His last submission is that the petitioner has been appointed in a society, which is private in nature and the writ petition filed against a private society even discharging public duties is not maintainable. In support of his submission, he placed reliance upon the judgments in the cases of Uttam Chand Rawat Vs. State of U.P. and 7 others; Writ- A No.9814 of 2020 and St. Mary's Education Society and Anr. Vs. Rajendra Prasad Bhargava and ors.; Civil Appeal No.5789 of 2022 decided vide judgment and order dated 24.08.2022. Relevant portion of the judgments is being quoted below:
a) Uttam Chand Rawat (Supra):
"If the writ petition refers to contractual obligation inter se between the parties, it would not be maintainable. Thus, the twin test, as suggested by us in this judgment is to be satisfied for maintainability of the writ petition and that too, after taking notice of the finding and observation made by us in reference to the nature of authority or person. Accordingly, we answer the questions referred by learned Single Judge in following terms :
(1) The remedy under Article 226 of the Constitution of India would be available against an authority or a person only when twin tests are satisfied. The authority or the person should not only discharge public function or public duty but the action challenged therein should fall in the domain of public law. The writ petition would not be maintainable against an authority or person even if it is discharging public function/public duty, if the controversy pertains to the private law such as a dispute arising out of contract or under the common law.
(2) The judgment of this Court in the case of Rajesh Kumar Srivastava (supra) is not against the ration pronounced by the Larger Bench in the case of Roychan Abraham (supra) rather it has followed the judgment of the Apex Court in the case of K. K. Saksena (supra).
Since the questions have been answered by the Larger Bench, the Registry is directed to place this order before the learned Single Judge where the writ petition is pending for hearing."
b) St. Mary's Education Society and Anr. (Supra):
.................................................
Even if it be assumed that an educational institution is imparting public duty, the act complained of must have direct nexus with the discharge of public duty. It is undisputedly a public law action which confers a right upon the aggrieved to invoke extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through petition under Article 226. Wherever Courts have intervened in exercise of jurisdiction under Article 226, either the service conditions were regulated by statutory provisions or the employer had the status of 'State' within the expansive definition under Article 12 or it was found that the action complained of has public law element.
.................................................?
7. In view of objection raised by learned counsel for the respondents, there is no hesitation to hold that the petitioner, where he was discharging duties, is a private society and, therefore, in view of law laid down in the aforesaid judgments, the writ petition would not be maintainable.
8. Accordingly, the writ petition is dismissed.
Order Date :- 13.2.2023
Adarsh K Singh
