Pawan Kumar Sharma vs Anandalaya Education Society
2023 Latest Caselaw 2656 Guj

    C/SCA/1942/2023                                    CAV JUDGMENT DATED: 31/03/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 1942 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

================================================================

1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy No of the judgment ?

4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ PAWAN KUMAR SHARMA Versus ANANDALAYA EDUCATION SOCIETY ================================================================ Appearance:

JAIMIN A GANDHI(8065) for the Petitioner(s) No. 1

================================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 31/03/2023

CAV JUDGMENT

1. The present petition is filed by being aggrieved and

dissatisfied with the impugned order dated 10.10.2022

passed by the respondent - society, by which, the

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services of the petitioner is terminated, and therefore,

the petitioner has filed this petition under Article 226 of

the Constitution of India.

2. Brief facts of the case are as such that the

petitioner made an application on 26.08.2019 for

appointment as a Principal of Anandalaya Education

Society. It is the case of the petitioner that the

necessary selection procedures were conducted on

30.11.2019 and 01.12.2019. Consequent to that, the

petitioner was selected and appointed as Principal of the

college, which is run by the respondent. He was

appointed by appointment letter dated 03.12.2019. It is

further the case of the petitioner that the letter of appointment states that the petitioner was appointed on

probation basis for a period of one year and

subsequently by office order dated 29.12.2020, the

respondent has confirmed the services of the petitioner.

It is the case of the petitioner that various allegations

were made against the petitioner and consequently

departmental proceedings were initiated, and thereafter, a

charge-sheet against the petitioner dated 11.02.2022 has

been served to the petitioner and thereafter, the

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respondent has passed order dated 11.02.2022 for

suspension of the petitioner on temporary basis.

2.2 It is the case of the petitioner that the petitioner

has made a detailed reply by denying the charges made

in the charge-sheet. It is further the case of the

petitioner that the respondent by letter dated 29.04.2022

had intimated the petitioner about appointment of Shri

V.C. Patel as Inquiry Officer for conducting the

departmental proceedings. It is further the case of the

petitioner that additional charge-sheet is also served to

the petitioner on 03.08.2022 and subsequently, the

respondent - society has lodged an F.I.R. before Anand

Town Police Station bearing No.11215002220695 of 2022 under Section 506(1) of IPC. It is further the case of

the petitioner in the petition that the respondent -

society has passed the order dated 10.08.2022 whereby

the suspension of petitioner is extended till the

completion of the inquiry proceedings. It is further the

case of the petitioner in the petition that subsequently,

the respondent has filed second additional charge-sheet

dated 11.08.2022, to which, the petitioner by letter dated

23.08.2022 has filed their explanation to the charges

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

framed in the additional charge-sheet. It is further the

case of the petitioner in the petition that since he is

visiting to Jaipur from 15.10.2022 till 30.10.2022, he has

sent email to the respondent on 06.10.2022 for intimating

about his unavailability. Thereafter, the respondent has

passed the order on 10.10.2022, by which the services

of the petitioner were terminated.

2.3 Thereafter, the present petition is filed.

3. Heard learned advocate Mr. Prithvirajsinh Jadeja

assisted by learned advocate Mr. Jaimin A. Gandhi for

the petitioner and learned Senior advocate Mr. Dhaval C.

Dave assisted by learned advocate Mr. Udit N. Vyas for the respondent.

4.1 Learned advocate Mr. Prithvirajsinh Jadeja for the

petitioner has submitted that the impugned order is in

compete dis-regard to the principles of natural justices

and various settled legal positions of law.

4.2 He has submitted that on successful completion of

probation, the services of the petitioner were confirmed

and accordingly, the petitioner became a regular

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employee of the respondent. He has further submitted

that the respondent ought not to have terminated the

services of the petitioner without following the

requirements of departmental inquiry as per the

Anandalaya Education Society (Service conditions,

discipline, conduct and appeal) Rules, 1988.

4.3 He has further submitted that though the

respondent initiated the departmental inquiry, the

respondent did not conclude the departmental inquiry.

The respondent has admitted the fact that the

departmental inquiry was not concluded as it clearly

transpires from the order itself that it is observed that

the Inquiry Officer has also refused to proceed with the

inquiry proceedings against the petitioner for the reasons stated in the order. He has further submitted that the

impugned order is a stigmatic order. The impugned order

quotes the lodging of FI.R. and various allegations made

in the charge-sheet indicating inappropriate behavior by

the petitioner. He has further submitted that the

impugned order is made without application of mind as

the impugned order does not reflect the submissions of

the petitioner.

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

4.4 He has heavily relied on the aspect that since the

respondent is promoted or sponsored by National Dairy

Development Board (NDDB) and it is 'State' under

Article 12 of the Constitution of India, and therefore,

this Court can exercise the powers under powers under

Article 226 of the Constitution of India.

4.5 He has further submitted that the inquiry is

initiated against the petitioner and without any valid

reason, the inquiry proceedings is dropped and

straightaway the punishment is awarded, which is

against the principals of natural justice and impugned

action of the respondent is arbitrary and unreasonable.

4.6 He has relied on the decision of the Hon'ble Apex Court in the case of Anoop Jaiswal Versus Government

Of India rendered in 1984 (2) SCC 369. He has further relied on the decision of this Court in the case of

Sandip Ajitsinh Vaghela Versus State of Gujarat rendered in Special Civil Application No.12071 of 2018

dated 26.02.2019, and has submitted that the Court has found the aspect of alternative remedy and the Court

has found that there is no absolute bar to exercise

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

jurisdiction under Article 226 of the Constitution of India

in a given case. He has also relied on the decision of

this Court in the cases of (i) Chetan Jayantilal Rajgor

Versus State of Gujarat rendered in Special Civil Application No.4439 of 2017 dated 19.06.2019, (ii) State of Gujarat Versus Hiteshbhai Bahyabhai Chaudhary rendered in Letters Patent Appeal No.396 of 2020 dated

06.08.2020, (iii) State of Gujarat Versus Chetan Jayantilal Rajgor rendered in Letters Patent Appeal No.1596 of 2019 dated 24.07.2019, and has submitted that the order dated 10.10.2022 by terminating the

services of the petitioner is against the principals of

natural justice and the stigmatic order is required to be

interfered with by this Court.

5.1 Per contra, learned senior advocate Mr. Dhaval C.

Dave for the respondent has raised the preliminary

objection by submitting that the writ petition is not

maintainable under Article 226 of the Constitution of

India in view of the judgment of the Hon'ble Apex Court

in the case of St. Mary's Education Society Versus Rajendra Prasad Bhargava reported in 2022 SCC OnLine SC 1091, more particularly, paragraphs 49, 52, 62, 65

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

and 69 are relevant. The Hon'ble Apex Court has

categorically held that an application under Section 226

of the Constitution of India is maintainable against a

person or a body discharging public duties or public

functions and 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 the

matter relating to their service where they are not

governed or controlled by the statutory provisions, and

therefore, he has submitted that on this ground only, the

present petition deserves to be dismissed.

5.2 He has further submitted that assuming for the

sake of argument, the petitioner is entitled to invoke

jurisdiction under Article 226 of the Constitution in any

case, then on merits also, no case is made out. He has

further submitted that there is no error committed by

the respondent society. He has drawn the attention of

this Court towards the affidavit-in-reply filed by the

respondent where the Rules of Anandalaya Education

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

Society (Service conditions, discipline, conduct and appeal)

Rules, 1988 and more particularly, Rule 15(ii) is relevant,

and the petitioner was rightly terminated by the

Chairman of the respondent in view of the powers given

under the abovementioned Rules.

5.3 He has further submitted that the attitude of the

petitioner during the course of inquiry was

uncooperative and non-conducive for conducting

disciplinary proceeding by the Inquiry Officer. He has

further submitted that the petitioner during the course of

inquiry demonstrated totally hostile and despicable

behaviour and due to this behaviour, the authority had

constrained to issue additional charge-sheet to the

petitioner during the course of the inquiry proceedings. He has further submitted that the petitioner was also

found to be indulging in threatening the teachers at the

School, who were to appear as management witnesses

with dire consequences on life and one employee had

also caused to register a First Information Report against

the petitioner under Section 506 of the Indian Penal

Code, 1908. He has further submitted that considering

the threatening behaviour of the petitioner during the

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

course of inquiry, the Inquiry Officer, who appointed by

the respondent, refused to proceed with the inquiry

against the petitioner by communication dated 30.09.2022,

and therefore, in view of the above, the respondent has

no other option but to exercise the power under Rule

15(ii) of the Anandalaya Education Society (Service

conditions, discipline, conduct and appeal) Rules, 1988 for

terminating the services of the petitioner and as the

petitioner had adversely affected the security of other

employees at the School and that continuation of the

services of the petitioner at the School were hazardous

and detrimental to the interest of the students as well

as other employees of the School.

5.4 He has further submitted that a contract of personal service cannot be specifically enforced and in

view of the same, the petitioner cannot seek quashing of

the order of termination dated 10.10.2022, and therefore,

he has submitted that on this ground also, the present

petition deserves to be dismissed. He has further

submitted that the petitioner is required to hold a higher

standard of conduct and behaviour being the head of an

educational institution, however, contrary to the same,

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

the conduct of the petitioner was completely unbecoming

of a Principal of the School, and therefore, there was a

complete loss of confidence of the respondent in the

petitioner. Hence, the termination of the petitioner is

justified. He has further submitted that as the present

case involves disputed question of facts as well as the

facts about exercise of purely administrative powers by

an educational institution, and therefore, this Court may

not exercise any extra-ordinary jurisdiction.

5.5 He has further submitted that as such, the

petitioner is contractual employee, and therefore, there is

no need to go for any departmental inquiry in view of

conditions, which are mentioned in the contract itself.

Looking to the gravity of the misconduct as well as the highhandedness approach shown by the petitioner during

the inquiry proceedings, whereby he has threatened the

teachers, who were working in the respondent school,

and also as the petitioner was holding the post of

Principal of the respondent school in the larger public

interest, there is no violation of principals of natural

justice as the petitioner is, otherwise, given show cause

notice, etc., to give his explanation about the said

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

misconduct.

5.6 He has relied on the judgment of this Court in the

case of Shambhavi Kumari vs Sabarmati University rendered in 2022 (0) AIJEL - HC 244267, more

particularly, paragraphs 9 and 10 of that judgment is

relevant and has submitted that if any grievance is

there, then the petitioner can avail the remedy under

the civil law but the petition is not maintainable, and

therefore, he prays to dismiss the present petition as no

cause is made out to interfere in this petition.

6. In rejoinder, learned advocate Mr. Prithvirajsinh

Jadeja for the petitioner has submitted by pointing out

the Anandalaya Education Society (Service conditions, discipline, conduct and appeal) Rules, 1988, whereby he

tried to point out that it is promoted by National Dairy

Development Board (NDDB) and in view of the Gazette

Notification of India, NDDB is constituted by the

National Dairy Development Board Act, 1987. He has

submitted that since the termination order is apparently

stigmatic and the respondent institution can be

considered under the provisions of Article 12, the writ

petition is maintainable under Article 226 of the

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

Constitution of India and this Court may exercise the

powers by interfering in the impugned order passed by

the respondent institution.

7.1 I have considered the rival contentions made at the

Bar. I have also gone through the appointment order

dated 03.12.2019, whereby the petitioner is appointed

only adhoc basis. I have also gone through the charge-

sheet, which is issued on 11.02.2022 by the respondent

institution. I have also gone through the papers of

inquiry, by which, it is found that the Inquiry Officer

has refused to carry further inquiry in view of the fact

that the petitioner was showing highhandedness and has

abused the Inquiry Officer during the inquiry

Proceedings. I have also considered the F.I.R. filed by one of the employee against the petitioner under Section

506(ii) of the I.P.C., whereby one Deepak Prabhakar

Manjrekar, who was serving as a teacher in the same

School, had filed the complaint by saying that the

petitioner has threatened him about the dire

consequences.

7.2 I have also gone through the other documents

annexed with the petition. I have also gone through the

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Memorandum as well as Rules of Association, which is

not the part of the record, but was shown during the

course of argument. I have also gone through the

judgments cited by the petitioner. I have also considered

the affidavit-in-reply filed by the respondent institution. I

have also perused the Anandalaya Education Society

(Service conditions, discipline, conduct and appeal) Rules,

1988 and more particularly, Rule No.15(ii) is relevant,

which is reproduced as under:-

"11) Where the Board or the Chairman is satisfied, on

receipt of information or otherwise, that the

continuance in service of any employee who has been

confirmed, would adversely affect the security of the

establishment in which he is to function, or is

detrimental or hazardous to the public interest, he

may, notwithstanding anything contained in these rules,

terminate the service of an employee for the reasons to

be recorded (which shall be communicated to him at

the time of discharge) on giving him three month's pay

in lieu of notice.

Provided that in every case where it is practicable the

employee shall be given an opportunity to show cause

before direing the termination:

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

Provided further that where the Board or the

Chairman, as the case may be, is satisfied that the

disclosure of the reasons would be prejudicial to the

Anandalaya or to the employee and expose either of

them to the civil or criminal proceedings, such

information may be withheld for the reasons to be

recorded in writing."

7.3 I have also perused the provision No.37 of the said

Rule, 1988 for Disciplinary Authority under Rule No.2,

which pertains to procedure for imposing major penalty. I

have also perused the communicated dated 30.09.2022

written by Inquiry Officer V.C. Patel to the Chairman of

the respondent institution. I have also perused the

judgment cited at the Bar by learned advocate for the

respondent about the maintainability of Article 226 of the Constitution of India.

7.4 The following aspects are undisputed on total

consideration of the issue involves in the present

petition.

(i) The petitioner was serving as Principal in the School.

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(ii) The petitioner was initially appointed on probation by

way of contract.

(iii) The petitioner has committed some gross misconduct,

and therefore, the respondent institution has followed the

necessary procedure by issuing charge-sheet, etc., and

thereafter, has initiated inquiry by appointing Inquiry

Officer viz., Mr. V.C. Patel. It transpires from the record

that during the course of inquiry, the Inquiry Officer has

faced several threats from the petitioner and not only

that, it also transpires from the record that other

teachers, serving in the School had received threats from

the present petitioner about the dire consequences and

one of the teachers has filed criminal case against the petitioner during the pendency of inquiry.

(iv) When the inquiry was on the verge of its

completion, at that point of time, due to non-

conduciveness and highhandedness approach of the

petitioner, the Inquiry Officer has refused to proceed

further with the inquiry proceeding. Thereafter, the

chairman of the respondent institution has exercised

powers under Clause 15(ii) of the Anandalaya Education

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Society (Service conditions, discipline, conduct and appeal)

Rules, 1988 and has dismissed the services of the

present petitioner.

7.5 In view of abovementioned factual aspects, it

transpires that the conduct of the petitioner is

apparently unbecoming to the Principal of the School.

Not only that, the School has tried to follow the

necessary procedure by holding the inquiry, but also the

conduct of the petitioner was such that the inquiry could

not be proceeded further and inquiry was stopped due to

non-willingness of the Inquiry Officer to proceed further.

The conduct of the petitioner as Principal of the School

was sending a wrong message among the teachers and students as he is expected to behave in most appropriate

and discipline manner.

7.6 Further, the judgment cited at the Bar by the

learned advocate for the petitioner is not applicable in

the facts and circumstances of the present case.

7.7 Moreover, the judgments cited at the Bar by

learned Senior advocate Mr. Dhaval C. Dave in the case

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of St. Mary's Education Society (supra), paragraphs 49,

52, 62, 65 and 69 are relevant, which are as under:-

"49. We may also refer to and rely upon the decision

of this Court in the case of Vidya Ram Misra v. The

Managing Committee Shri Jai Narain College, (1972) 1

SCC 623 : AIR 1972 SC 1450. The appellant therein

filed a writ petition before the Lucknow Bench of the

High Court of Allahabad challenging the validity of a

resolution passed by the Managing Committee of Shri

Jai Narain College, Lucknow, an associated college of

the Lucknow University, terminating his services and

praying for issue of an appropriate writ or order

quashing the resolution. A learned single Judge of the

High Court finding that in terminating the services,

the Managing Committee acted in violation of the

principles of natural justice, quashed the resolution and

allowed the writ petition. The Managing Committee

appealed against the order. A Division Bench of the

High Court found that the relationship between the

college and the appellant therein was that of master

and servant and that even if the service of the

appellant had been terminated in breach of the audi

alteram partem rule of natural justice, the remedy of

the appellant was to file a suit for damages and not

to apply under Article 226 of the Constitution for a

writ or order in the nature of certiorari and that, in

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

fact, no principle of natural justice was violated by

terminating the services of the appellant. The writ

petition was dismissed. In appeal, this Court upheld

the decision of the High Court holding that the

Lecturer cannot have any cause of action on breach of

the law but only on breach of the contract, hence he

has a remedy only by way of suit for damages and not

by way of writ under Article 226 of the Constitution.

In Vidya Ram Misra (supra), this Court observed thus:

"12. Whereas in the case of Prabhakar

Ramakrishna Jody v. A.L. Pande (1965) 2 SCR

713, the terms and conditions of service embodies

in Clause 8(vi)(a) of the 'College Code' had the

force of law apart from the contract and conferred

rights on the appellant there, here the terms and

conditions mentioned in Statute 151 have no

efficacy, unless they are incorporated in a

contract. Therefore, appellant cannot found a

cause of action on any breach of the law but

only on the breach of the contract. As already

indicated, Statute 151 does not lay down any

procedure for removal of a teacher to be

incorporated in the contract. So, Clause 5 of the

contract can, in no event, have even statutory

flavour and for its breach, the appellant's remedy

lay elsewhere.

13. Besides, in order that the third exception to

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the general rule that no writ will lie to quash an

order terminating a contract of service, albeit

illegally, as stated in S.R Tewari v. District

Board, Agra, (1964) 3 SCR 55 : AIR 1964 SC

1680, might apply, it is necessary that the order

must be the order of a statutory body acting in

breach of a mandatory obligation imposed by a

statute. The college, or the Managing Committee

in question, is not a statutory body and so the

argument of Mr. Setalvad that the case in hand

will fall under the third exception cannot be

accepted. The contention of counsel that this

Court has subsilentio sanctioned the issue of a

writ under Article 226 to quash an order

terminating services of a teacher passed by a

college similarly situate in Prabhakar

Ramakrishna Jodh (supra), and, therefore, the fact

that the college or the Managing Committee was

not a statutory body was no hindrance to the

High Court issuing the writ prayed for by the

appellant has no merit as this Court expressly

stated in the judgment that no such contention

was raised in the High Court and so it cannot

be allowed to be raised in this Court."

52. Thus, the aforesaid order passed by this Court

makes it very clear that in a case of retirement and

in case of termination, no public law element is

involved. This Court has held that a writ under Article

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226 of the Constitution against a private educational

institution shall be maintainable only if a public law

element is involved and if there is no public law

element is involved, no writ lies.

62. Merely because a writ petition can be maintained

against the private individuals discharging the public

duties and/or public functions, the same should not be

entertained if the enforcement is sought to be secured

under the realm of a private law. It would not be safe

to say that the moment the private institution is

amenable to writ jurisdiction then every dispute

concerning the said private institution is amenable to

writ jurisdiction. It largely depends upon the nature of

the dispute and the enforcement of the right by an

individual against such institution. The right which

purely originates from a private law cannot be enforced

taking aid of the writ jurisdiction irrespective of the

fact that such institution is discharging the public

duties and/or public functions. The scope of the

mandamus is basically limited to an enforcement of the

public duty and, therefore, it is an ardent duty of the

court to find out whether the nature of the duty comes

within the peripheral of the public duty. There must

be a public law element in any action.

65. The Full Bench proceeded to answer the

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aforesaid question as under: "16. The substance of the

discussion made above is that a writ petition would be

maintainable against the authority or the person which

may be a private body, if it discharges public function/

public duty, which is otherwise primary function of the

State referred in the judgment of the Apex Court in

the case of Ramakrishnan Mission (supra) and the

issue under public law is involved. The aforesaid twin

test has to be satisfied for entertaining writ petition

under Article 226 of the Constitution of India.

17. From the discussion aforesaid and in the

light of the judgments referred above, a writ petition

under Article 226 of the Constitution would be

maintainable against (i) the 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.

18. There is thin line between "public functions"

and "private functions" discharged by a person or a

private body/authority. The writ petition would be

maintainable only after determining the nature of the

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duty to be enforced by the body or authority rather

than identifying the authority against whom it is

sought.

19. It is also that even if a person or authority

is discharging public function or public duty, the writ

petition would be maintainable under Article 226 of the

Constitution, if Court is satisfied that action under

challenge falls in the domain of public law, as

distinguished from private law. The twin tests for

maintainability of writ are as follows :

1. The person or authority is discharging public

duty/public functions.

2. Their action under challenge falls in domain of

public law and not under common law.

20. The writ petition would not be maintainable

against an authority or a person merely for the reason

that it has been created under the statute or is to

governed by regulatory provisions. It would not even in

a case where aid is received unless it is substantial in

nature. The control of the State is another issue to

hold a writ petition to be maintainable against an

authority or a person." (Emphasis supplied)

69. We may sum up our final conclusions as under:

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(a) 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.

(b) Even if it be assumed that an educational

institution is imparting public duty, the act complained

of must have a dire 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 for 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"

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within the expansive definition under Article 12 or it

was found that the action complained of has public law

element.

(c) 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. 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.

(d) Even if it be perceived that imparting education by

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private unaided the school is a public duty within the

expanded expression of the term, an employee of a

nonteaching 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 nonteaching 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 nonteaching staff

is regulated by some statutory provisions, its violation

by the employer in contravention of law may be

interfered 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.

(e) 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."

7.8 In view of the above, it is clearly established that

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

writ is not maintainable under Article 226 of the

Constitution of India against the present respondent

institution. Moreover, in view of the judgment of this

Court in the case of Shambhavi Kumari (supra), paragraphs 9 and 10 are relevant, which are as under:-

"9. The reliance placed on behalf of the petitioner on

the decision of the Hon'ble Supreme Court in case of

Janet Jeyapaul vs. SRM University and ors (supra)

would not be applicable as in the fact of the present

case, termination of the petitioner is an issue to be

decided in the realm of private contract, as the

petitioner has remedy under the Civil Law in view of

the decision of the Supreme Court in case of

K.K.Saxena vs. International Commission of Irrigation

and Drainage reported in 2015 (4) SCC 670 referred to

and relied upon by the Co- ordinate bench in case of

Mukesh Bhavarlal Bhandari and ors vs. Dr. Nagesh

Bhandari and ors (supra). It is, therefore, not necessary

to go into the merits of the case with regard to the

issue of show-cause notice for providing an opportunity

of hearing resulting into breach of principle of natural

justice and whether the action of the respondent-

University is unfair or not because all such disputes

essentially are in the realm of private contract and

therefore, if at all there is an alleged arbitrary action

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

on the part of the respondent, the same would give

cause to the petitioner to initiate civil action before the

Civil Court but in the facts of the present case, the

writ petition against the private educational institution

governed by the Gujarat Private Universities Act, 2009

would not be maintainable.

10. In view of the above conspectus of law, the

petition is not entertained as the same would not

be maintainable in the facts of the case and

petitioner is entitled to take legal remedy by way

of an appropriate proceeding before the appropriate

forum under the Civil Law for redressal of the

grievances raised in this petition."

7.9 From the above judgment, it is clearly established that when there is dispute essentially,

which is in the realm of private contract, and

therefore, if at all there is an alleged arbitrary

action on the part of the respondent, the same

would give cause to the petitioner to initiate civil

action before the Civil Court but in the facts of the

present case, the writ petition against the private

educational institution would not be maintainable.

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

7.10 Further, considering the aspect of inquiry

proceeding, which is initiated by the respondent,

which is required to be discontinued in view of

request of the Inquiry Officer as the petitioner has

not cooperated and has shown highhandedness

during the inquiry proceedings, and also considering

the fact that it is clear from the record that the

respondent - authority has appointed the petitioner

on contract and his services are governed by the

terms of contract and there is valid clause in the

contract, whereby if we read the appointment order

read with the provisions of the said Rules, 1988, it

clearly transpires that the respondent authority

though it is not required, as cannot be considered as 'State' under Article 12 of the Constitution of India

and looking to the nature of the service, which can

be termed as contractual appointment and also

considering the fact that even the F.I.R. is filed

against the petitioner during the pendency of inquiry

by one of the teachers, the termination of the

petitioner is found in larger public interest as the

petitioner being a Principal of the school has to

show more courtesy and respect towards the rules

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

and regulations, which he has not shown and it is

fruitful to refer the judgment of the Hon'ble Apex

Court in the case of Regional Manager, UCO Bank

and Anr. vs. Krishna Kumar Bhardwaj reported in 2022 (5) SCC 695, whereby the Hon'ble Apex Court has held that the High Court under Article 226 of

the Constitution of India has limited scope of

judicial review in respect of dismissal whereby the

Court has further held that power of judicial review

in such circumstances is well circumscribed by

limits of correcting errors of law or procedural errors

leading to manifest injustice or violation of principles

of natural justice in peculiar facts and

circumstances of the present case as discussed earlier and it is not akin to adjudication of the case

on merits, and therefore in view of that also,

considering the peculiar facts and circumstances of

the present case, this Court finds that the impugned

action of the respondent authority is in consonance

with law and by following the Rules, and therefore,

no reason is required to be called for by exercising

extraordinary jurisdiction in view of the power vested

under Article 226 of the Constitution of India.

C/SCA/1942/2023 CAV JUDGMENT DATED: 31/03/2023

7.11 This Court finds that there is clear element of

loss of confidence in the petitioner by the respondent

institution in view of the above stated fact, and

therefore, the respondent is justified in its action by

exercising the power under Anandalaya Education Society

(Service conditions, discipline, conduct and appeal) Rules,

1988 and on legal aspect also, considering the settled

legal position also, this Court finds no justifiable reason

to interfere in the order passed by the respondent by

exercising the powers under Article 226 of the

Constitution of India, and therefore, the present petition

is not required to be considered, and therefore, the

present petition is dismissed.

8. In view of the above, the present petition is

disposed of.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA