Gujarat High Court

Dinesh Sharan Thakur vs Dr. M K Shah Medical College And Research ... on 9 January, 2024

Author: Ashutosh Shastri

Bench: Ashutosh Shastri

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     C/LPA/295/2022                            JUDGMENT DATED: 09/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 295 of 2022
                                   In
              R/SPECIAL CIVIL APPLICATION NO. 12227 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 5630 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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

1    Whether Reporters of Local Papers may be allowed                No
     to see the judgment ?

2    To be referred to the Reporter or not ?                         No

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 ?

================================================================
                      DINESH SHARAN THAKUR
                              Versus
       DR. M K SHAH MEDICAL COLLEGE AND RESEARCH CENTRE
================================================================
Appearance:
PARTY IN PERSON(5000) for the Appellant(s) No. 1
MS MITUL SHELAT for MS DISHA N NANAVATY(2957) for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 4
VIKAS V NAIR(7444) for the Respondent(s) No. 2,3
================================================================

    CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
          and
          HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK



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                            Date : 09/01/2024

                           ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)

1. The present Letters Patent Appeal is filed by the party-in-

person - appellant (original petitioner) under Clause 15 of the

Letters Patent against the impugned judgment and order dated

22.02.2022 passed by the learned Single Judge in Special Civil

Application No.12227 of 2021, whereby, the learned Single Judge

had dismissed the petition. The Special Civil Application No.5630

of 2022 is filed by the petitioner for quashing and setting aside

the Order No. MKSHAHMCRC / REL-LETTER / 271 / 2021-22 issued

by respondent No.1 dated 09.03.2022 and reinstatement the

petitioner in service with all consequential benefits. Both the

appeal and the petition are heard together.

2. Brief facts of the present appeal in nutshell are as under:-

2.1 The petitioner - appellant herein is a degree holder holding

M.D. in Anesthesia from AIIMS, New Delhi. The petitioner was

engaged by the respondent No.1 Dr. M. K. Shah, Medical College

of Research Centre on the post of Professor and head of

Department (Anesthesia) on 17.03.2017. The party-in-person

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joined on 18.03.2017. On 12.06.2021, the petitioner addressed a

letter to the Medical Superintendent of respondent No.1 - college

that one Anesthesia Assistant Ms. Vedangi Prajapati was irregular

and remaining absent, who was orally warned in presence of

another co-workers.

2.2 It is the case of the petitioner that on 23.06.2021, he

received a call from one Dr. Falguni Patel summoning him for

interrogation in one Gender Harassment Committee at 10.30 a.m

and he appeared and came to know that this was pursuant to a

complaint filed by Vedangi Prajapati.

2.3 It is also the case of the petitioner that by an order dated

14.07.2021, as a result of the report of the committee the charge

of Head of Department of Anesthesia has been taken over from

the petitioner on administrative ground without any prior notice

or inquiry report.

3. Being aggrieved and dissatisfied with the order dated

14.07.2021, the appellant - petitioner preferred the above-

mentioned Special Civil Application, which came to be dismissed

by the learned Single Judge and hence, this appeal.

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4. Heard appellant - party-in-person at length, Mr.Mitul

Shelat assisted by Ms. Disha Nanavaty, learned advocate for

respondent No.1 and Mr.Vikas Nair, learned advocate for

respondents No.2 and 3.

5. The appellant - party-in-person has submitted that the

impugned judgment and order passed by the learned Single

Judge is illegal, unjust and arbitrary and against the settled

principle of law. The party-in-person has submitted that the

learned Single Judge has not considered the breach of

fundamental rights and injustice done to him and only on the

ground of alternative remedy, the learned Single Judge dismissed

the petition which is erroneous and illegal. He has submitted that

though the order passed by respondent No.1 is against the

principles of natural justice and arbitrary, the learned Single

Judge has not considered such aspect in its true and proper spirit

and dismissed the petition on the preliminary ground of

maintainability of the petition. He has submitted that the learned

Single Judge, while considering the seniority list of the Gujarat

University, has passed the impugned judgment and order which

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is against the service law and settled principles of the Hon'ble

Supreme Court and the University has no authority to prepare

the seniority list of any institution. He has submitted that the

order is without legal sanctity and outcome of the interrogation

of Gender Harassment Committee and on such issue, the

petitioner has been removed from the post of the Head of

Department. He has also submitted that no any opportunity of

hearing was given to him and no charge-sheet was filed and,

therefore, the order passed by the respondent - authority is bad

in law. He has submitted that the action of reduction in rank is

violation of Section 51(A) of the Gujarat University Act and by an

order, his future employment opportunity will be affected and

the order of reduction is a punishment order without any charge-

sheet and attracts stigma. The party-in-person has submitted

that the respondents are functioning as statutory body under the

control of the Central Government and amenable to writ

jurisdiction of this Hon'ble Court. So far as the merits of the

appeal is concerned, the party-in-person has submitted that the

substantial question of law arise as the impugned judgment and

order is arbitrary, illegal and unconstitutional and the learned

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Single Judge has committed grave error in passing the impugned

judgment and order. The appellant has submitted that he was

working under the public law from 18.03.2017 as a professor in

department of Anesthesia and taken over the charge on the post

of Head of Department as per regulation of MCI Regulations and

IMC 1956 Act as his enforceable fundamental right being the

senior most faculty serving in department since 4 years 3

months but suddenly he was removed from the post of Head of

Department with effect from 14.07.2021 without issuing any

notice / charge-sheet / punishment. The appellant has submitted

that another junior professor namely Dr.Bipinchandra Patel was

appointed after his appointment on the basis of Administrative

convenient by respondent No.1 and the Head of Department is

not come under administrative convenient and only the

administrative head, on the basis of administrative law, can take

the disciplinary action against the concerned Head of

Department by conducting departmental inquiry and impose

punishment on the basis of the inquiry report and, thereafter as

per regulation of MCI and IMC 1956 Act, another senior most in

the department appointed as Head of Department. While relying

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upon the gazette notification of MCI dated 08.06.2017, the party-

in-person has submitted that the respondents are functioning as

statutory body under MCI, IMC Act, 1956 Rules and Regulations

and under the control of the Central Government and are

amenable to writ jurisdiction of this Court and the Central

Institution, State Institution and Private Institution are State

instrumentality according to the gazette notification of MCI. He

has submitted that respondent No.1 - institution functions under

the Central legislation of MMC Act, 1956 and Constitution of MCI

with formal affiliation by Gujarat University, but the college work

under statutory Section 2(f) of UGC 1956 Act and, therefore, this

Act bounds the university fall under the State Government and

then by virtue of entry of 66 list, 7 th Schedule of Constitution

passed by the parliament, would override the State Legislation.

The appellant has submitted that if this Hon'ble Court may

peruse the seniority list for senior most to be Head of

Department, then as to why the charge of Head of Department

was not given to Dr. Bipinchandra Patel on 14.07.2021 instead of

01.05.2018. The party-in-person has submitted that the dispute

for removal of post of Head of Department by respondent No.1 is

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violation of regulation of MCI under IMC Act 1956 which comes

under the Parliament Act and in this regard senior most faculty

serving in department will be Head of Department. The appellant

has submitted that the appointment of respondent No.4 as Vice

Chancellor of the S. P. University is contrary to the UGC

Regulations 2018. The party-in-person has urged this Court to

allow the appeal and to quash and set aside the impugned

judgment and order passed by the learned Single Judge.

5.1 With regard to Special Civil Application No.5630 of 2022,

the party-in-person has submitted that he has been recruited by

regular recruitment process as per regulation of MCI and IMC Act

1956 under direction of the order of the Central Government as

mentioned in Ordinance 97 of the Gujarat University. The party-

in-person has submitted that he was on probation period for two

years and after probation period of over, two increments were

given to him and regular salary along with allowances started

and thereafter, he was informed vide letter issued in 2021 that

he will continue his service upto 70 years of superannuation as

per gazette notification of MCI Government of India. He has

submitted that in the said gazette, it has been mentioned that

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any faculty is eligible for regular permanent service, either

irrespective of direct in service or reappoint till date of

superannuation. The party-in-person has submitted that he has

completed five years of service only elapsing eight days left and

illegible for next promotion of the post of dean as per gazette

notification of MCI dated 08.06.2017 and he was relieved on

09.03.2022 without issuing any notice / inquiry / punishment,

which shows the violation of principles of natural justice. The

party-in-person has submitted that he has been recruited by

regular recruitment process as per regulation of MCI and IMC Act

1956.

5.2 In support of his submissions, the party-in-person has relied

upon the following decisions.

(1) Miss Mohini Jani Vs. State of Karnataka and others reported in 1992 AIR 1858;

(2) Uni Krishnan J.P. and others Vs. State of Andra Pradesh and others reported in 1993 AIR 2178;

(3) Rama Krishna Mission and another Vs. Kago Kunya and others reported in (2019) 16 SCC 303 (paragraph 2);

(4) Roychand Abraham Vs. State of U.P. and others dated 26.02.2019 in Writ A No.63708 of 2014;

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(5) State of Gujarat Vs. Mansukhbhai Kanjibhai Shah dated 27.04.2020 in Criminal Appeal No.989 of 2018 (paragraph no. 19, 20, 42, 43;

(6) Gambhirdan K. Ganddvi Vs. State of Gujarat dated 03.03.2022 in Petition (Civil) No.1525 of 2019; (paragraph 9, 9.1, 16, 17, 17.1;

(7) Ashutosh Gupta and others Vs. State and others dated 06.08.2014 in S.W.P. No.326 of 2013 (paragraph 4, 9 and

16)

(8) Dr. Preeti Srivastava Vs. State of M.P. reported in (1999) 7 SCC 120 (paragraph 7, 12, 13, 14, 17, 18, 26, 27, 28, 29, 30;

(9) Modern Dental College and Research Centre and others Vs. State of Madhya Pradesh reported in (2016) 7 SCC 353; (paragraph no.3, 5, 6, 7, 9, 11, 12, 13, 14, 16, 17, 18, 20, 22, 24, 25 and 26;

(10) Marwadi Balika Vs. Vidhyalay Vs. Asha Srivastava dated 14.02.2019 in Civil Appeal No. 9166 of 2013;

(11) Dr. Jaswinder Kaur Gambhir Vs. U.O.I. and others dated 18.09.2012 rendered by Delhi High Court in W.P. (C) No.5692 of 2008 and allied matters;

(12) Manoharlal Jat and others Vs. State of Rajasthan dated 26.11.2020 rendered in Civil Appeal No.3822 - 3833 of 2020;

(13) D. Parasuraman Vs. Government of India and another dated 11.01.2012 rendered by Madras High Court in W.P. No. 7718 to 7720 of 2007;

(14) Dr. Usha Vs. State of Tamil Nadu dated 20.07.2016 rendered by Madras High Court in W.P. No. 2151 of 2012;

(15) Secretary, State of Karnataka and others Vs. Umadevi and others dated 10.04.2006 rendered in Appeal (Civil)

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No.3595 - 3612 of 1999; (paragraph No.1, 2, 3, 5 and 30);

(16) Secretary, Sant Josheph College Vs. State of Tamil Nadu and others dated 23.02.2011 rendered by Madras High Court in Writ Appeal (MD) No.649 of 2007;

(17) Pradeep Sharma Vs. State Education Department and others dated 03.10.2018 rendered in D.B. Civil Writ Petition No.7557 of 2018 by Rajasthand High Court;

(18) Tamil Nadu Medical College Vs. P. Anand dated 16.11.2012 (paragraph 9, 10, 11, 16, 27, 29, 32, 36, 41,

48);

(19) Assets Care and Reconstruction Enterprises Limited Vs. The State of Maharashtra dated 16.10.2023 rendered in Special Leave Petition No.9913 of 2022;

(20) Godrej Sara Lee Ltd Vs. Excise and Taxation Officer-cum-

Assessing Authority and Others reported in 2023 SCC OnLine SC 95;

6. The party-in-person has relied upon the judgment of the

Kerala High Court in the case of Dr. Vijayalakshmi Vs.

University Grants Commission rendered in W.P. (C)

No.29512 of 2012 (L) dated 23.02.2016 wherein the Kerala

High Court has held and observed in para-10 to 12 as under:-

"10. Thus, if the prescription of a higher qualifications for appointment to the post of Principal in the UGC Regulations of 2010 is viewed as part of a central legislation on the subject of determination and maintenance of standards of teaching in Universities, then by virtue of it being a legislation under Entry 66 of List I of the VIIth Schedule to the Constitution, it would prevail over the provisions of the State legislation that prescribes lower qualifications for such appointments.

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11. In the context of Medical and Technical Education, where the Indian Medical Council Act and the AICTE Act exist as central legislations that trace their validity to the power of Parliament to legislate in respect of the subjects enumerated in Entry 66 of List I, the Supreme Court had occasion to consider the interplay between the said enactments and State legislations enacted in exercise of powers under Entry 25 of List III.

12. It might also be apposite to refer to the decision of the Supreme Court in the case of Annamalai University rep. by Registrar v Secretary to Government, Information and Tourism Department and Ors - 2009 (4) SCC 590, wherein in the context of a conflict between the UGC Act and the Open University Act, the binding nature of the provisions of the UGC Act to all Universities was stated in the following terms:

"40. The U.G.C. Act was enacted by Parliament in exercise of its power under Entry 66 of List I of the Seventh Schedule to the Constitution of India whereas the Open University Act was enacted by Parliament in exercise of its power under Entry 25 of List III thereof. The question of repugnancy of the provisions of the said two Acts, therefore, does not arise. It is true that the statement of Objects and Reasons of the Open University Act shows that the formal system of education had not been able to provide an effective means to equalise educational opportunities. The system is rigid inter alia in respect of attendance in classrooms. Combinations of subjects are also inflexible.

41. Was the alternative system envisaged under the Open University Act in substitution of the formal system, is the question. In our opinion, in the matter of ensuring the standard of education, it is not. The distinction between a formal system and an informal system is in the mode and manner in which education is imparted. The UGC Act was enacted for effectuating co-ordination and determination of standards in universities. The purport and object for which it was enacted must be given full effect.

42. The provisions of the UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by it in terms of clauses (e), (f), (g), and (h) of sub-section (1) of Section 26 are of wide amplitude. They apply equally to open universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instructions. Such minimum standards of instructions are required to be defined by UGC. The standards and the coordination of work or facilities in universities

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must be maintained and for that purpose required to be regulated. The powers of UGC under Sections 26(1)(f) and 26 (1)(g) are very broad in nature. Subordinate legislation as is well known when validly made becomes part of the Act. We have noticed hereinbefore that the functions of UGC are all pervasive in respect of the matters specified in clause (d) of sub-section (1) of Section 12-A and clauses (a) and (c) of sub-section (2) thereof".

7. The party-in-person has referred to and relied upon the

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

Singh Vs. State of Haryana and others rendered in Writ

Petition (Civil) No. 735 of 2014 dated 20.09.2022 and submitted

that the societies fall under Entry 32, List II (State List) of VII th

Schedule of Constitution of India so amenable under Article 226

of Constitution of India as fundamental rights of the appellant.

He has submitted that as per MCI Gazette Notification, private

medical colleges are instrumentality of State and management

works as statutory body under the statute. It is submitted that it

is well settled rules of law that all private medical colleges

(Majority and Minority) are State instrumentality and functions as

public body just like as Government Medical College under the

Central and State Government but the Control of Central

Regulations of MCI and IMC 1956.

8. Mr.Mitul Shelat, learned advocate assisted by Ms.Disha

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Nanavaty, learned advocate for respondent No.1 has submitted

that the learned Single Judge has not committed any error in

passing the impugned judgment and order and has rightly

dismissed the petition. He has submitted that the appellant has

to raise his grievance with regard to the seniority list and he has

not to implead any of the persons who would be affected by

challenging to the said seniority list. He has submitted that the

appellant has made assertions with regard to the appointment of

Dr.Bipinchandra Patel, who is not a party to the present

proceedings and even the appellant was not regular and

permanent employee of respondent No.1 and he was appointed

after his retirement from the services of the State Government.

He has submitted that the appellant was never appointed to the

post of Head of Department as alleged, but he was given the

charge of Head of Department to him and the same was

withdrawn by respondent - college and while withdrawing any

charge, the respondent - college is not required to issue any

notice and/or conduct inquiry. He has submitted that Article 311

is not applicable with regard to the appointment and

employment in a private unaided colleges and withdrawal of the

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charge from the appellant does not amount to violation of the

Rules framed under the Indian Medical Council Act, 1956. He has

submitted that Dr.Bipinchandra Patel is the senior most graduate

teacher and the entire petition has not been decided on the basis

of issue of seniority. He has submitted that the seniority list is

not subject matter in the present case and if the appellant has

any grievance with regard to the seniority list, then he has

alternative remedy of filing appropriate proceedings before the

Tribunal. He has submitted that the appellant was engaged after

his retirement from the service and was given the charge of

Head of Department, but his appointment was only to the post of

Professor and only charge, which was given to him, came to be

withdrawn. He has submitted that the dispute between the

appellant and the respondent - college can be adjudicated

before the concerned Tribunal and, therefore, he has an

alternative remedy either before the Tribunal or by filing a civil

suit. He has submitted that the appeal and the petition are

devoid of merits and are required to be dismissed.

8.1 In support of his submissions, Mr.Shelat, learned advocate

has relied upon the following decisions.

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(1) Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others reported in AIR 1991 SC 1145;

(2) State of Haryana Vs. S. M. Sharma and others reported in 1993 Supp (3) SCC 252;

(3) State of Punjab and others Vs. Arun Kumar Aggarwal and others reported in (2007) 10 SCC 402;

(4) Ramakrishna Mission and another Vs. Kago Kunya and others reported in (2019) 16 SCC 303;

(5) Mahavirsinh Narapatsinh Jadeja Vs. Saurashtra University and another in Letters Patent Appeal No.337 of 2020;

(6) Kotak Mahindra Bank Limited Vs. Dilip Bhosale reported in 2022 SCC OnLine SC 847;

(7) Mohamed Ali Vs. V. Jaya and others reported in (2022) 10 SCC 477;

(8) St. Mary's Education Society and Another Vs. Rajendra Prasad Bhargava and Others reported in (2023) 4 SCC 498;

9. In the case of Ramakant Shripad Sinai Advalpalkar

(supra), the Hon'ble Supreme Court has held and observed in

para - 6 as under:-

"6. The third contention is that appellant's 'in charge' arrangements in the higher post had continued for so long a period that a determination of equivalence on the basis of his lower substantive post would become arbitrary. This contention ignores the fact that an 'in charge' arrangement is not a recognition of or is necessarily based on seniority and that, therefore, no rights, equities or expectations could be built upon it. The third contention is also unmeritorious."

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10. In the case of S. M. Sharma (supra), the Hon'ble Supreme

Court has held and observed in para-11 and 12 as under:-

"11. Sharma was given the current duty charge of the post of Executive Engineer under the orders of the Chief Administrator and the said charge was also withdrawn by the same authority. We have already reproduced above Rule 4(2) of the General Rules and Rule 13 of the Service Rules. We are of the view that the Chief Administrator, in the facts and circumstances of this case, was within his powers to issue the two orders dated 13.06.1991 and 6.01.1992.

12. We are constrained to say that the High Court extended its extra-ordinary jurisdiction under Art.226 of the Constitution of India to a frivolity. No one has a right to ask for or stick to a current duty charge. The impugned order did not cause any financial loss or prejudice of any kind to Sharma. He had no cause of action whatsoever to invoke the writ jurisdiction of the High Court. It was a patent misuse of the process of the court."

11. In the case of Arun Kumar Aggarwal (supra), the Hon'ble

Supreme Court has held and observed in para- 13, 14 and 15 as

under:-

13. To avoid multiplicity, this Court in the case of Ramakant Shripad Sinai Advalpalkar vs. Union of India, 1991 Supp.(2) SCC 733, held in paragraph 5 as under:-

"The arrangements contemplated by this order plainly do not amount to a promotion of the appellant to the post of Treasurer. The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher

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post; but gets only what in service parlance is called a "charge allowance". Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop- gap arrangement"

14. In the case of State of Haryana vs. S.M. Sharma, 1993 Supp.(3) SCC 252, while considering the identical question this Court held in paragraphs 11 and 12 as under:-

"11. Sharma was given the current duty charge of the post of Executive Engineer under the orders of the Chief Administrator and the said charge was also withdrawn by the same authority. We have already reproduced above Rule 4(2) of the General Rules and Rule 13 of the Service Rules. We are of the view that the Chief Administrator, in the facts and circumstances of this case, was within his powers to issue the two orders dated June 13, 1991 and January 6, 1992.

12. We are constrained to say that the High Court extended its extraordinary jurisdiction under Article 226 of the Constitution of India to a frivolity. No one has a right to ask for or stick to a current duty charge. The impugned order did not cause any financial loss or prejudice of any kind to Sharma. He had no cause of action whatsoever to invoke the writ jurisdiction of the High Court. It was a patent misuse of the process of the court."

15. We, accordingly, hold no such right much less indefeasible right has been accrued to the diploma-holder junior engineers (outstanding category) by virtue of giving CDC to the post of S.D.O. for regularization in the post. It was purely a stopgap arrangement, neither based on seniority nor efficiency and no cause of action arises by withdrawing the same by the order dated 22.6.2005.

12. In the case of Kotak Mahindra Bank Limited (supra), the

Hon'ble Supreme Court has held and observed in para-8 as

under:-

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"8. Before parting with the order, we would like to observe that this Court is consistent of the view and can be noticed from the judgment in United Bank of India vs. Satyawati Tandon & Ors.

(2010) 8 SCC 110, that when a remedy under the statute is available and in the instant case which indeed was availed by the respondent/borrower, filing of a writ petition under Article 226 of the Constitution is to be discouraged by the High Court."

13. In the case of Mohamed Ali (supra), the Hon'ble Supreme

Court has held and observed in para-20 and 22 as under:-

"20. Even otherwise and as observed hereinabove, against the exparte judgment and decree, the remedy by way of an appeal before the First Appellate Court was available. Therefore, the High Court ought not to have entertained the revision application under Section 115 of CPC and under Article 227 of the Constitution of India. The High Court ought not to have entertained such a revision application challenging the exparte judgment and decree. Once there was a statutory alternative remedy by way of an appeal available to the defendants, the High Court ought not to have entertained a writ petition or revision application under Article 227 of the Constitution of India.

22. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, the High Court ought not to have entertained the revision petition under Article 227 of the Constitution of India against the exparte judgment and decree passed by the learned Trial Court in view of a specific remedy of appeal as provided under the Code of Civil Procedure itself. Therefore, the High Court has committed a grave error in entertaining the revision petition under Article 227 challenging the exparte judgment and decree passed by the learned Trial Court and in quashing and setting aside the same in exercise of powers under Article 227 of the Constitution of India."

14. In the case of St. Mary's Education Society (supra), the

Hon'ble Supreme Court has held and observed in para-62:-

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"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."

15. In the case of Mahavirsinh Narapatsinh Jadeja (supra),

the Division Bench of this Court has held and observed in para-

23, 24 and 26:-

"23. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the learned Single Judge committed any error in passing the impugned order.

24. Before adverting to the rival submissions canvassed on either side, we may look into the few relevant provisions of law. Section 2(d) of the Act, 2006 defines the term "employee" as under:

"Section 2 Definitions - In this Act, unless the context otherwise requires,-

(d) "employee" means the any member of the teaching and nonteaching staff of the educational institution (whether confirmed or temporary or on probation) in service of such institution and for the purpose of any proceeding under this Act in relation to a dispute referred to in Section 10, includes any such member who has been dismissed or removed or whose services are otherwise terminated;"

26. The plain reading of the above referred provisions makes it

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abundantly clear that if any employee of the teaching and nonteaching staff of an educational institution is aggrieved by any order or decision relating to his service conditions, he has an efficacious alternative remedy of preferring an appeal to the Tribunal. The combined reading of the relevant provisions of the Act, 2006 reveal that the appellant herein undoubtedly falls within the ambit of an "employee" of the University constituted under Section 2(15) of the Saurashtra University Act, 1965. Any decision or order of the educational institution connected with the condition of service of its employee is required to be challenged before the Tribunal in accordance with the provisions of the Act, 1965 and the provisions of the Services Tribunal Act, 2006."

16. Now, the only question arise in the present appeal is that

whether the learned Single Judge has committed an error while

passing the impugned judgment and order or not.

17. We have gone through the materials on record and the

written submissions made by the party-in-person as well as

decisions cited at the Bar. We have perused the averments made

in the appeal as well as writ petition and affidavit-in-reply and

the rejoinder affidavit filed on behalf of both the sides and also

perused the impugned judgment and order passed by the

learned Single Judge. That the present appeal is filed by the

party-in-person mainly on the ground that the learned Single

Judge has not considered the breach of fundamental rights and

injustice done to the present appellant and, on a ground of

alternative remedy available under the law, learned Single Judge

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has dismissed the petition. The statutory remedy available under

the law and the Tribunal establishes under the statute. It appears

that the appellant was appointed purely on private contract of

service after he retired from the government service and,

therefore, the petition filed under Articles 226 and 227 of the

Constitution of India itself is not maintainable and the dispute

between the appellant and respondent college can be agitated

and adjudicated before the Gujarat Education Institutional

Services Tribunal, which is established under the statute and

since there is statutory alternative remedy available under the

law, the writ of mandamus under Article 226 of the Constitution

of India cannot be issued. That the respondents have filed

affidavit-in-reply objecting the writ petition on the ground of

maintainability as there is alternative statutory remedy available

to the appellant and the cause espoused by the appellant is not

to be entertained in the petition filed under Article 226 of the

Constitution of India more particularly when there is dispute

relating to the contractual service in nature, the grievance of the

appellant that since he was appointed on regular post, he was

holding a charge of Head of Department and without there being

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any reason or without giving any opportunity, respondent No.1

has taken the charge of the Head of Department from the

appellant is against the principles of natural justice and violative

of his fundamental rights. It appears that the grievance of the

appellant is that the charge of the Head of Department was

taken away by respondent No.1 and handed over to one Dr.

Bipinchandra Patel as Head of Department is not a post but it is

merely a charge given to the present appellant and his service is

purely on contractual basis dated 17.03.2017 and he was given

the charge of the Head of Department and it is not a permanent

post, but it is merely a charge of Head of Department and,

therefore, respondent No.1 has not committed any breach of

condition or legal right of the present appellant and the dispute

can be agitated before the Tribunal who is empowered to

adjudicate such dispute. We are of the considered opinion that

there is no any illegality or infirmity or perversity in the

impugned judgment and order passed by the learned Single

Judge. The basic issue agitated by the appellant in the petition

that since respondent No.1 who is running the hospital and

performing the functions by the hospital are in the nature of

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public function and on the basis of which the writ of mandamus

can be alive under Article 226 of the Constitution of India. The

said issue was considered by the Hon'ble Apex Court in the case

of Ram Krishna Mission (supra). In this decision, the Hon'ble

Supreme Court has held and observed in para - 30, 31, 32 and

34 as under:-

"30. Thus, even if the body discharges a public function in a wider sense, there is no public law element involved in the enforcement of a private contract of service.

31. Having analysed the circumstances which were relied upon by the State of Arunachal Pradesh, we are of the view that in running the hospital, Ramakrishna Mission does not discharge a public function. Undoubtedly, the hospital is in receipt of some element of grant. The grants which are received by the hospital cover only a part of the expenditure. The terms of the grant do not indicate any form of governmental control in the management or day to day functioning of the hospital. The nature of the work which is rendered by Ramakrishna Mission, in general, including in relation to its activities concerning the hospital in question is purely voluntary.

32. Before an organisation can be held to discharge a public function, the function must be of a character that is closely related to functions which are performed by the State in its sovereign capacity. There is nothing on record to indicate that the hospital performs functions which are akin to those solely performed by State authorities. Medical services are provided by private as well as State entities. The character of the organisation as a public authority is dependent on the circumstances of the case. In setting up the hospital, the Mission cannot be construed as having assumed a public function. The hospital has no monopoly status conferred or mandated by law. That it was the first in the State to provide service of a particular dispensation does not make it an `authority' within the meaning of Article 226. State governments provide concessional terms to a variety of organisations in order to attract them to set up establishments within the territorial jurisdiction of the State. The State may encourage them as an

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adjunct of its social policy or the imperatives of economic development. The mere fact that land had been provided on a concessional basis to the hospital would not by itself result in the conclusion that the hospital performs a public function. In the present case, the absence of state control in the management of the hospital has a significant bearing on our coming to the conclusion that the hospital does not come within the ambit of a public authority.

34. Thus, contracts of a purely private nature would not be subject to writ jurisdiction merely by reason of the fact that they are structured by statutory provisions. The only exception to this principle arises in a situation where the contract of service is governed or regulated by a statutory provision. Hence, for instance, in K K Saksena (supra) this Court held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed."

18. Subsequently the said view is also reiterated by the

Hon'ble Supreme Court in the case of St. Mary's Education

Society (supra). Therefore, we are of the opinion that the

learned Single Judge has not committed any error while dealing

with such issue and arriving at conclusion in the petition. We are

not disturbing the findings recorded by the learned Single Judge

and confirming the impugned judgment and order.

19. So far as the scope of interference and maintainability of

the appeal is concerned, at this juncture, we may refer to and

rely upon the decision of the Apex Court in the case of

Management of Narendra & Company Private Limited Vs.

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Workmen of Narendra & Company reported in (2016) 3 SCC

340. Since we have considered the same, we deem it proper to

reproduce the same hereunder:-

"5. Once the learned Single Judge having seen the records had come to the conclusion that the industry was not functioning after January 1995, there is no justification in entering a different finding without any further material before the Division Bench. The Appellate Bench ought to have noticed that the statement of MW 3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court appeal, on a finding of fact, unless the Appellate Bench reaches a conclusion that the finding of the Single bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief."

20. We may also refer to and rely upon the decision of the

Hon'ble Supreme Court in the case of Godrej Sara Lee Ltd Vs.

Excise and Taxation Officer-cum-Assessing Authority and

Others reported in 2023 SCC OnLine SC 95 wherein the

Hon'ble Supreme Court has held and observed in para-4 as

under:-

"4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and

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ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition "not maintainable". In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper."

21. So far as Special Civil Application No.5630 of 2022 is

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concerned, the writ of mandamus cannot be issued while

invoking the powers under Article 226 of the Constitution of

India. Accordingly, there is breach of fundamental rights or

principles of natural justice, when there is statutory alternative

remedy available and provided under the statute and there is

specific Tribunal established under the Act, we are of the opinion

that the present petition is not maintainable in view of the

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

Ramkrishna Mission (supra) wherein the Hon'ble Supreme

Court has held and observed in para-17 and 18 as under:-

"17. The basic issue before this Court is whether the functions performed by the hospital are public functions, on the basis of which a writ of mandamus can lie under Article 226 of the Constitution.

18. The hospital is a branch of the Ramakrishna Mission and is subject to its control. The Mission was established by Swami Vivekanand, the foremost disciple of Sri Ramakrishna Paramhansa. Service to humanity is for the organisation co-equal with service to God as is reflected in the motto "Atmano Mokshartham Jagad Hitaya Cha". The main object of the Ramakrishna Mission is to impart knowledge in and promote the study of Vedanta and its principles propounded by Sri Ramakrishna Paramahansa and practically illustrated by his own life and of comparative theology in its widest form. Its objects include, inter alia to establish, maintain, carry on and assist schools, colleges, universities, research institutions, libraries, hospitals and take up development and general welfare activities for the benefit of the underprivileged/ backward/ tribal people of society without any discrimination. These activities are voluntary, charitable and nonprofit making in nature. The activities undertaken by the Mission, a non-profit entity are not closely related to those performed by the state in its sovereign capacity nor

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do they partake of the nature of a public duty."

22. In the case of St. Mary's Education Society (supra), the

Hon'ble Supreme Court, while referring the decision of

Ramakrishnan Mission, has held and observed in para - 64, 65

and 69 as under:-

"64. The aforesaid decision of this Court in Ramakrishnan Mission (supra) came to be considered exhaustively by a Full Bench of the High Court of Allahabad in the case of Uttam Chand Rawat v. State of U.P., reported in (2021) 6 All LJ 393 (FB), wherein the Full Bench was called upon to answer the following question:

"(i) Whether the element of public function and public duty inherent in the enterprise that an educational institution undertakes, conditions of service of teachers, whose functions are a sine qua non to the discharge of that public function or duty, can be regarded as governed by the private law of contract and with no remedy available under Article 226 of the Constitution-"

(Emphasis supplied)

The Full Bench proceeded to answer the 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

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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 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:

(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

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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 direct 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" 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 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

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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."

23. 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.

24. We may refer to and rely upon the decision of the Hon'ble

Supreme Court in the case of Phoenix ARC Private Limited

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Vs. Vishwa Bharati Vidya Mandir reported in AIR 2022 SC

1045, wherein, the Hon'ble Supreme Court has referred to the

decision in the case of CIT Vs. Chhabil Dass Agarwal reported in

(2014) 1 SCC 603 in which the Hon'ble Supreme Court has

observed in para - 15 that "the High Court will not entertain a

petition under Article 226 of the Constitution if an effective

alternative remedy is available to the aggrieved person or the

statute under which the action complained of has been taken

itself contains a mechanism for redressal of grievance still holds

the field. Therefore, when a statutory forum is created by law for

redressal of grievances, a writ petition should not be entertained

ignoring the statutory dispensation". The Hon'ble Supreme Court

has observed in this decision that in view of the statutory,

efficacious remedy available by way of appeal under Section 17

of the SARFAESI Act, the High Court ought not to have

entertained the writ petitions.

25. The learned Single Judge has observed in para-6, 7, 8 and 9

as under:-

"6. Even otherwise, what is evident from the order of appointment dated 17.3.2017 is that the petitioner was only appointed as a

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Professor in Anesthesiology on a consolidated salary. The appointment is purely temporary. For administrative convenience, the charge of HOD was handed over to the petitioner. By the impugned order dated 14.7.2021, what is done is that for administrative reasons the charge is taken over from the petitioner and handed over to one Dr. Bipin Patel.

7. Dr. Thakur in his submission would try and make out a case of stigma as a result of the charge being taken back. If for administrative reason, it is so done, even on the basis of the Gender Harassment Committee's findings, it cannot be faulted on the ground being stigmatic.

8. On perusal of the seniority list of the Gujarat University annexed to reply, even otherwise, what is made out is that Dr. Bipin Patel has a total teaching experience of 39 years and 11 months and as a professor of 20 years and 3 months, whereas, the petitioner has a total teaching experience of 17 years and 3 months and as a Professor of 4 years and 3 months. Evidently, therefore, Dr. Patel has far more experience and senior to the petitioner and handing over the charge to Dr. Patel cannot be said to be an act of stigma and, therefore, the impugned order cannot be in any manner whatsoever considered to be stigmatic and cannot even be said to be reduction in rank.

9. As far as the prayer of the petitioner to undertake an inquiry on the issues raised in legal notice is not within the purview of this Court in a Writ under Article 226 of the Constitution of India. Therefore, on both these counts, the petition is dismissed. Notice is discharged. No costs."

26. In view of the above, we are of the opinion that the petition

is not maintainable and it is open for the petitioner to agitate all

his grievance with regard to the service conditions and the order

challenged on a ground of violation of principles of natural

justice can be adjudicated and adhere by the Tribunal. The

findings recorded by this Court in the Letters Patent Appeal or in

the present Special Civil Application will not come in the way of

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the petitioner. The Tribunal shall not influence by the

observations made by this court in any manner and it is without