Andhra Pradesh High Court - Amravati
V Rama Koteswara Rao vs The State Of Ap on 14 August, 2024
APHC010494462023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3330]
(Special Original Jurisdiction)
WEDNESDAY ,THE FOURTEENTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No:
N 25557/2023
Between:
V Rama Koteswara Rao ...Petitioner
AND
The State Of Ap and Others ...Respondent(s)
Counsel for the Petitioner:
1. N ASHWANI KUMAR
Counsel for the Respondent(S):
1. NAGARAJU NAGURU
2. GP FOR SCHOOL EDUCATION
3. P RAVIKANTH
4. M VIDYASAGAR
The Court made the following:
2
ORDER:
The 5th respondent vide proceedings dated 22.09.2023
transferred the petitioner, from Dr.N.T.T.P.S. DAV Public School,
Ibrahimpatnam to DAV High School, Nellore, on the existing pay
scale on the administrative ground observing that the Petitioner is
entitled for TA, DA as per norms. The said proceedings have
been assailed before this Court on the ground that the transfer is
not under normal order, or it was made for administrative
exigencies and transfer order was created and the power of
transfer in the instant case was adopted as an alternative for
punishment and which transfer cannot be inflicted without going
through the process as prescribed under the law and in order to
substantiate the said contention referred the internal proceedings
of the 4th respondent which was addressed to the Assistant
Regional Officer, DAV Institutions, in the said proceedings, it is
observed that the petitioner has manipulated the attendance of the
child in the Dr. NTTPS DAV School records and caused a lot of
confusion and criticism from the parent community.
Consequently, LMC of Dr. NTTPS has strongly felt that,
disciplinary action should be taken against Sri V. Ramakoteswara
Rao, PET, who is the petitioner herein. Therefore, the Chief
Engineer (O&M), NTTPS, has requested the DAV College
Managing Committee, New Delhi, to transfer the petitioner to any
of the APGENCO DAV Schools on mutual basis, on disciplinary
grounds.
2. The respondent Nos. 4 to 7 are appeared through their
counsels, voiced that it was only in the interest of the
administration, that too, because of various reports levelled
against the petitioner that this transfer had been made in
consultation with the respondent No.4 and 5. Moreover,
administrative convenience and necessity should be given prime
consideration in such transfers and the petitioner has been found
most undesirable character in order to enforce and maintain
discipline, the transfer had been affected for administration
purposes and the institution has received complaint on
30.01.2023, the President/DAV Parent-Teacher Association/Dr.
NTTPS has brought to the notice of the Chief Engineer (Operation
and Maintenance) Dr. Narla Tatarao Thermal Power Station,
Ibrahimpatnam, that some unethical, immoral practices done by
the petitioner in DAV Sports meet 2022-23 by giving admissions
with back date to outside students, who got prizes in sports meet.
In that regard, the affected children's parents had given complaint
to the higher DAV officials, but DAV management not reacted
appropriately and not taken any action. Many parents are treating
this matter seriously and trying to escalate the issue to the DEO.
Therefore, requested to take action immediately for not causing
further damage to the reputation of the school and also contended
that at the request of the APGENCO, the respondent No.5 had
entered into an agreement with DAV CMC Society and they are
not the sanctioning authority for registration of the school under
the Education Act and they have established the school at the
request of the APGENCO, represented by its Managing Director,
and the said school is not an aided school and it is purely a private
body discharging without any public duty or positive obligation of
public nature and denied the contentions raised by the petitioner
that the petitioner was transferred as an alternative for
punishment, which punishment cannot be implemented without
going into the process as prescribed under law and the transfer
was not affected as a punishment without resorting to the
disciplinary action and the proceedings relied by the petitioner are
internal proceedings between the respondents and mainly
contended that the Writ Petition itself is not maintainable.
Therefore, prayed to dismiss the Writ Petition.
3. Heard Sri N. Ashwani Kumar, learned counsel for the
petitioner, Sri Nagaraju Naguru, learned Standing Counsel for
Respondent No.3 and Sri P. Ravikanth, learned counsel for
Respondent No.6.
4. Point for consideration.
5. At the outset, it is the contention of the learned counsel
appearing for the petitioner that it is the settled law that a transfer
should not be affected as a punishment without resorting to the
disciplinary action and agitated that the order is liable to be set
aside and also relied on the judgment of the Hon'ble Apex Court in
Janet Jeyapaul v. SRM University and others1 and also relied on
the in another judgment of the Delhi High Court titled as Jitender
Singh Tyagi and Ors. V. Director of Education and Ors. 2, for the
proposition that when the respondent institution is discharging
public function, the Writ Petition is maintainable against the said
institution.
1 (2015) 16 SCC 530
MANU/DE/0169/2009
6. Learned counsel appearing for the petitioner has not
explained the purport of the Delhi High Court's judgment and it is
not applicable to the facts of this case. The Judgment of the
Hon'ble Apex Court reported in Janet Jeyapaul (supra 1), wherein
it was observed that all the provisions of UGC Act are made
applicable to the respondent-university i.e. SRM university, which
is a deemed university. And the said university is discharging like
other universities, after considering catena of judgments
delineated that it is an authority within the meaning of Article 12 of
the Constitution of India.
7. In one of the recent pronouncements of Hon'ble Apex Court
in the case of St. Mary's Education Society v. Rajendra Prasad
Bhargava3 , the entire law on the subject has been discussed
threadbare. In the said case, Apex Court held that while a private
unaided minority institution might be touching the spheres of
public function by performing a public duty, its employees have no
right of invoking the writ jurisdiction of the High Court under
Article 226 of the Constitution in respect of matters relating to
service where they are not governed or controlled by the statutory
provision.
(2023) 4 SCC 498
In the said case, the following two questions fell for the
consideration of the Court:--
(a) Whether a writ petition under Article 226 of the Constitution of
India is maintainable against a private unaided minority
institution?
(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? 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?
Apex Court has drawn the distinction between a body created by
the statute and a body governed in accordance with a statute
and has been explained in Executive Committee of Vaish Degree
College v. Lakshmi Narain, (1976) 2 SCC 58 held that CBSE is
only a society registered under the Societies Registration Act,
1860 and the school affiliated to it is not a creature of the statute
and hence not a statutory body, as follows : - (SCC p. 65, para
10)
"10. ... It is, therefore, clear that there is a well marked distinction
between a body which is created by the statute and a body which
after having come into existence is governed in accordance with
the provisions of the statute. In other words the position seems to
be that the institution concerned must owe its very existence to a
statute which would be the fountainhead of its powers. The
question in such cases to be asked is, if there is no statute would
the institution have any legal existence. If the answer is in the
negative, then undoubtedly it is a statutory body, but if the
institution has a separate existence of its own without any
reference to the statute concerned but is merely governed by the
statutory provisions it cannot be said to be a statutory body."
As stated above, the school is affiliated to CBSE for the sake of
convenience, namely, for the purpose of recognition and syllabus
or the courses of study and the provisions of the 2009 Act and
the Rules framed thereunder.
It needs no elaboration to state that a school affiliated to CBSE
which is unaided is not a State within Article 12 of
the Constitution of India [seeSatimbla Sharma v. St Paul's Senior
Secondary School, (2011) 13 SCC 760 : (2012) 2 SCC (L&S) 75.
Nevertheless the school discharges a public duty of imparting
education which is a fundamental right of the citizen [see K.
Krishnamacharyulu v. Sri Venkateswara Hindu College of
Engineering, (1997) 3 SCC 571 : 1997 SCC (L&S) 841. The
school affiliated to CBSE is therefore an "authority" amenable to
the jurisdiction under Article 226 of the Constitution of
India [see Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657 : 2005
SCC (L&S) 881]]. However, a judicial review of the action
challenged by a party can be had by resort to the writ jurisdiction
only if there is a public law element and not to enforce a contract
of personal service. A contract of personal service includes all
matters relating to the service of the employee -- confirmation,
suspension, transfer, termination, etc. [see Apollo Tyres
Ltd. v. C.P. Sebastian, (2009) 14 SCC 360].
The contention canvassed by Respondent 1 is that a writ
petition is maintainable against the Committee of Management
controlling the affairs of an institution (minority) run by it, if it
violates any rules and bye-laws laid down by CBSE. First, as
discussed above, CBSE itself is not a statutory body nor the
regulations framed by it have any statutory force. Secondly, the
mere fact that the Board grants recognition to the institutions on
certain terms and conditions itself does not confer any
enforceable right on any person as against the Committee of
Management.
In the case of Committee of Management, Delhi Public
School v. M.K. Gandhi, reported in (2015) 17 SCC 353, this
Court held that no writ is maintainable against a private school as
it is not a "State" within the meaning of Article 12 of
the Constitution of India.
In Trigun Chand Thakur v. State of Bihar, reported in (2019) 7
SCC 513, this Court upheld the view of a Division Bench of the
Patna High Court which held that a teacher of privately managed
school, even though financially aided by the State Government
or the Board, cannot maintain a writ petition against an order of
termination from service passed by the Management.
Apex Court in K.K. Saksena v. International Commission on
Irrigation & Drainage, (2015) 4 SCC 670, after an exhaustive
review of its earlier decisions on the subject, held as follows : -
(SCC pp. 692 & 696, paras 43 & 52)
"43. What follows from a minute and careful reading of the
aforesaid judgments of this Court is that if a person or authority is
"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, we may add that even in such cases
writ would not lie to enforce private law rights. There are a
catena of judgments on this aspect and it is not necessary to
refer to those judgments as that is the basic principle of judicial
review of an action under the administrative law. The reason is
obvious. A private law is that part of a legal system which is a
part of common law that involves relationships between
individuals, such as law of contract or torts. Therefore, even if
writ petition would be maintainable against an authority, which is
"State" under Article 12 of the Constitution, 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.
xxxx
52. It is trite that contract of personal service cannot be enforced.
There are three exceptions to this rule, namely:
(i) when the employee is a public servant working under the
Union of India or State;
(ii) when such an employee is employed by an authority/body
which is a State within the meaning of Article 12 of
the Constitution of India; and
(iii) when such an employee is "workmen" within the meaning of
Section 2(s) of the Industrial Disputes Act, 1947 and raises a
dispute regarding his termination by invoking the machinery
under the said Act.
In the first two cases, the employment ceases to have private law
character and "status" to such an employment is attached. In the
third category of cases, it is the Industrial Disputes Act which
confers jurisdiction on the Labour Court/Industrial Tribunal to
grant reinstatement in case termination is found to be illegal."
8. After detail discussion and analysing innumerable
judgments at para 50 of the judgment, the Apex Court held that
"even if the function being performed by a private educational
institution in imparting education may be considered as a public
function, the relationship between the administration of such an
institution and its employees remains a contractual one, falling
within the ambit of private law".
9. In the judgment of Army Welfare Education Society v. Sunil
Kumar Sharma4, the Hon'ble Supreme Court held that Army
Welfare Education Society does not qualify as 'State' under Article
12 of the Constitution of India. The relationship between the
school and the staff is the same as that of employees and a
private employer, and it is governed by a private contract. The
Hon'ble Apex Court highlighted that the dispute between the
school and its staff pertains to service conditions, where public
elements do not come into play. Army Welfare Education Society,
New Delhi (supra 4), is a private, unaided society and the
employee-employer relationship with its staff remains private and
contractual, which would not engage public law elements.
2024 SCC OnLine SC 1683
10. In the case on hand, the 6th respondent school is not
performing public function or discharging public duties. On
analyzing the judgment of the Hon'ble Apex Court in Army Welfare
Education Society (supra 4), it emerges that even though
financially aided by the State Government or the Board, cannot
maintain Writ Petition against an order of termination from service,
passed by the management.
11. In pursuant to the judgment of the Hon'ble Apex Court in
Army Welfare Education Society (supra 4), even assuming that
the transfer of the Petitioner is not on the administrative grounds,
that the judgment of the Hon'ble Court affirms that though the
institution imparts education, it could be still be considered a
public function despite its employees being contractual, which falls
with the scope of private law.
12. The Hon'ble Supreme Court in Registrar General, High
Court of Judicature at Madras v. R Perachi and others5 in the said
case, Court Officer working in the High Court was transferred on
Administrative grounds pending disciplinary proceedings against
him for misconduct. A doubt as to integrity was also raised in that
case, while considering the issue, the Hon'ble Apex Court on
(2011) 12 SCC 137
judicial review to interfere with the transfer order, it was held that
transfer is an incident of service, and one cannot make a
grievance if transfer is made on administrative grounds, and
without attaching any stigma. It was further held that in a matter
of transfer of Government Employee, scope of judicial review is
limited and High Court cannot interfere with order of transfer lightly
since courts cannot substitute their own decisions in the matter.
13. Being in any manner and relying on the judgments of the
Hon'ble Apex Court in Army Welfare Educational Society, New
Delhi v. Sunil Kumar Sharma & others etc (supra 3) the petitioner
is not entitled for any relief and it is not a transfer on any
disciplinary reasons and as per the impugned order it is only on
administrative ground, the petitioner was transferred on the
complaints made by the parents association.
14. Therefore, the Writ Petition fails, accordingly it is dismissed.
No order as to costs.
As a sequel, interlocutory applications, if any pending in this
Writ Petition shall stand closed.
___________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 14.08.2024
Harin
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO
W.P.No. 25557 OF 2023
Date: 14-08-2024
Harin
