Dr. Anjana Singh vs State Of Jharkhand Through Its ...
2024 Latest Caselaw 9858 Jhar

Jharkhand High Court

Dr. Anjana Singh vs State Of Jharkhand Through Its ... on 4 October, 2024

Author: Deepak Roshan

Bench: Deepak Roshan

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             W.P.(S) No. 5791 of 2022

           Dr. Anjana Singh, daughter of Late Narayan Singh, aged about
           43 years, Assistant Professor, Head of Department,
           Department of History, Nirmala College, resident of Flat No.
           3/B, Neelam Apartment, Amethiya Nagar, Mahua Toli,
           Namkum, Ranchi-834010.                      ... Petitioner

                                      Versus

           1.     State of Jharkhand through its Secretary, Project
           Bhawan, P.O. & P.S. Dhurwa, District Ranchi, Jharkhand-
           834004.
           2.     Jharkhand Public Service Commission through its
           Secretary, P.O. G.P.O., P.S. Kotwali, District Ranchi,
           JHARKHAND-834001.
           3.     Nirmala College through its Secretary, Governing Body,
           Nirmala College, Ranchi Office at Doranda, P.O. Box No. 15,
           P.O. & P.S. Doranda, District Ranchi, Jharkhand-834002.
           4.     Ranchi University through its Registrar, Shahid Chowk,
           P.O. G.P.O., P.S. Kotwali, District Ranchi, Jharkhand-834001.
                                                      ..... Respondents

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN For Petitioner : Mr. Indrajit Sinha, Advocate Mr. S. Rasik Soren, Advocate

For Respondent-State : Ms. Pinky Tiwary, A.C. to A.G. For Respondent-College : Mr. Sumeet Gadodia, Mr. Nipun Bakshi, Mr. Shubham Sinha, Mr. Nilohit Choubey, Advs.

For the Ranchi University : Mrs. Aparajita Bhardwaj, Advs.

            For the JPSC               : Dr. Ashok Kumar Singh, Adv.

23/Dated: 4th October, 2024

           1.    The     instant   writ    application   was   initially   filed
           challenging    Memorandum          dated   21.10.2022,     wherein

departmental proceedings was initiated against the Petitioner by Respondent No. 3-Nirmala College as well as order contained in letter dated 14.11.2022, wherein Respondent-

Nirmala College declined to supply relevant documents to the Petitioner.

2. However, during the pendency of the writ application, an order was passed by Respondent No. 3-College imposing punishment of dismissal of service in the departmental proceedings and even Respondent-Jharkhand Public Service Commission (JPSC) granted post facto approval to the same which was challenged by filing amendment application before this Hon'ble Court and the said amendment application being I.A. No. 7549 of 2023 was allowed vide order dated 14.09.2023. Consequent upon the said amendment being allowed, amended writ application was filed by Petitioner and the reliefs claimed by Petitioner in the amended petition is as under:-

i) For issuance of an appropriate Writ/Rule/Direction particularly a Writ in the nature of Certiorari for quashing and setting aside the Memorandum Ref: 102/NCR/2022 dated 21.10.2022 [ANNEXURE-5] along with the charges framed against the petitioner issued by the Respondent No. 3;

ii) For issuance of an appropriate Writ/Rule/Direction particularly a Writ in the nature of Certiorari for quashing and setting aside the Memorandum Ref. No.108/NCR/2022 dated 14.11.2022 [ANNEXURE-7] whereby and whereunder the Respondent No. 3 had declined for supply of relevant documents thereupon and granted only three days' time to reply;

iia) For issuance of an appropriate Writ/Rule/Direction particularly a Writ in the nature of Certiorari for quashing the letter Ref. No. 111/NCR/2022 dated 22.11.2022 [ANNEXURE-8] issued by the Secretary, Governing Body, Nirmala College.

iib) For issuance of an appropriate Writ/Rule/Direction particularly a Writ in the nature of certiorari for quashing the Letter Ref. No.25/NCRA/2023 dated 03.03.2023 [ANNEXURE-17] whereby and whereunder the Respondent College had passed punishment order dismissing the Petitioner from service;

iic) For issuance of an appropriate Writ/Rule/Direction particularly a Writ in the nature of Certiorari for quashing the Letter No.-1/VV/RU/JPSC-

01/2023/2212 dated 28.06.2023 [ANNEXURE-21], whereby and whereunder the JPSC had given approval on the dismissal order passed by Respondent College;

iid) Direct the Respondent College to reinstate the Petitioner in service with all consequential benefits.

iii) Direct the Respondent No. 3 to declare the Disciplinary Authority before proceeding against the Petitioner;

iv) Direct the Respondent No. 3 to seek sanction from Respondent No. 2 before taking any disciplinary action as mandated under Section 57A of Jharkhand State Universities Act, 2000;

v) Direct the Respondent No. 3 to supply all relevant complaints against the Petitioner before seeking any reply/defence;

vi) And for any other relief or reliefs to which the petitioner may be entitled in the facts and circumstances of the case.

3. Case of the Petitioner is that Petitioner joined Nirmala College in the year 2005 as Lecturer in the Department of History and was confirmed on the post of Lecturer in History with effect from 01.07.2006 and was working as Assistant Professor and Head, Department of History with Respondent-Nirmala College.

4. It is the further case of the Petitioner that there was inordinate delay in release of arrears of her salary due to 6th Pay Revision with effect from 01.01.2006 and Petitioner was repeatedly making representation to Respondent-College but her grievances were not addressed by the College and, on the contrary, departmental proceedings was initiated against the Petitioner and, thereafter, during the pendency of the writ application, an order of dismissal of service of the Petitioner has been passed by Respondent-College. The said order of dismissal has received post facto approval by Respondent-JPSC vide order dated 28.06.2023.

5. The instant writ application was listed before this Hon'ble Court for hearing on 23.09.2024 and, on the said date, Mr. Sumeet Gadodia, Advocate appearing for Respondent No. 3 assisted by Mr. Nipun Bakshi, Advocate raised preliminary objection regarding maintainability of the writ petition and request was made to decide the said preliminary objection at the first instance before delving into the merits of the writ petition.

6. Accordingly, this Hon'ble Court heard at length the counsel for the Respondent No. 3 and counsel for the Petitioner Mr. Indrajit Sinha assisted by Mr. S. Rasik Soren

on the point of maintainability of the writ petition and instant order is confined to the issue of maintainability of the writ petition.

7. Mr. Sumeet Gadodia, counsel appearing for Respondent No. 3 vehemently submitted that Respondent- College is a Private Minority Aided Educational Institute and it receives grant-in-aid from the State Government for payment of salary to some of its teachers. The issue of maintainability has been raised on the following two grounds namely:- (i) The Petitioner has an alternative remedy under Section 8 of the Jharkhand Education Tribunal Act, 2005 ['JET Act, 2005'] to challenge initiation of departmental proceedings and/or the final order of dismissal from service, and, in view of existence of such alternative remedy, writ petition should not be entertained; (ii) It was contended that even if writ petition under Article 226 of the Constitution of India is maintainable against a Private Minority Institution, then also a service dispute in the private realm involving a Private Educational Institution and its employees cannot be adjudicated in a writ petition filed under Article 226 of the Constitution of India.

8. Mr. Sumeet Gadodia, counsel appearing for Respondent No. 3 relied upon the decisions of Hon'ble Supreme Court in the case of St. Mary's Education Society v. Rajendra Prasad Bhargava reported in (2023) 4 SCC 498 and the decision of Army Welfare Education Society, New Delhi v. Sunil Kumar Sharma & Ors. Reported in 2024 SCC OnLine SC 1683, to contend, inter alia, that the aforesaid issue is no longer res integra and it has been decided by Hon'ble Supreme Court that even if a writ petition under Article 226 of the Constitution of India can be held to be maintainable against a Private Educational Institution performing Public Duty, all its decisions are not

subject to judicial review under Article 226 of the Constitution of India and only such decisions which have public element, can be judicially reviewed under the writ jurisdiction.

9. It has been vehemently contended that in the aforesaid decisions of the Hon'ble Supreme Court, it has been clearly held that a dispute which is in the private realm involving Private Educational Institution and/or its employees cannot be adjudicated in a writ petition filed under Article 226 of the Constitution of India.

10. Per contra, Mr. Indrajit Sinha assisted by Mr. S. Rasik Soren, Advocates have vehemently opposed the contention of Respondent No. 3 and has submitted that mere existence of an alternative remedy under the JET Act, 2005 cannot be treated as a bar upon this Hon'ble Court in entertaining a writ petition.

11. It was further submitted that initially when the writ petition was filed admittedly, Jharkhand Education Tribunal was not functioning and, under the said circumstances, the Petitioner was remediless and approached this Hon'ble Court. Merely because during the pendency of the writ petition, Jharkhand Education Tribunal has become functional, the Petitioner should not be relegated back to the said Tribunal, once the writ petition has already been entertained by this Hon'ble Court.

12. Reliance has been placed by the Petitioner on a recent decision of Hon'ble Apex Court in the case of Godrej Sara Lee Limited v. Excise and Taxation Officer-cum- Assessing Authority and Ors. reported in 2023 SCC OnLine SC 95.

13. Further, on the issue of maintainability of the writ petition against Private Educational Institution, it has been vehemently submitted that the decisions relied upon by

Respondent No. 3 in the case of St. Mary's Education Society and Army Welfare Education Society, New Delhi (supra), are not applicable in the facts and circumstances of the present case and are clearly distinguishable and reliance was placed upon the decision of Marwari Balika Vidyalaya v. Asha Srivastava & Ors. Reported in (2020) 14 SCC 449.

14. Having heard learned counsel for the parties on the issue of maintainability; in my opinion, the following two questions are required to be determined on the issue of maintainability which are as under:-

i. Whether in view of the provisions of Section 8 of JET Act, 2005 and the existence of alternative remedy available to the Petitioner to approach Jharkhand Education Tribunal, there is a bar upon this Hon'ble Court in entertaining the writ petition under Article 226 of the Constitution of India?

ii. Whether the dispute between the Petitioner and Respondent-College is purely in the realm of private dispute having no public element, warranting interference under the judicial review jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India?

15. I have carefully examined the provisions of JET Act, 2005 and the judgment cited by the counsel for the Petitioner in the case of Godrej Sara Lee Limited (supra). Relevant provisions of JET Act, 2005 is quoted herein for the sake of ready reference:-

2. Definition - In this Act, unless the context otherwise requires-;

m. "Service matter", in relation to a person, means all matter relating to the conditions of his service in connection with the affairs of the educational institution, other than Govt. institution.

n. "Educational institution" means any educational institutions managed and administered by private management located within the State of Jharkhand.

CHAPTER-III Jurisdiction, Power and authority of Tribunal

8. Jurisdiction, Power and authority of the Jharkhand Education Tribunal-

Save as otherwise expressly provided in this Act, the Jharkhand Education Tribunal shall exercise on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all the

courts (Except the Jharkhand High Court and Supreme Court of India) Regarding :

(a) Matters concerning recruitment to any post or posts and the matters related therewith in connection with the affairs of the educational institution;

(b) All matters concerning the service conditions of employees of the educational institutions;

(c) Grievances of the employees against the management of the educational institutions;

(d) Grievances of the guardians and parents of students against the management of the educational institutions regarding teaching standards, fee structure infrastructural facilities, development works and allied matters related thereto;

(e) Such matters relating to educational institutions as may be referred to the tribunal by the State Government by notification from time to time.

16. Evidently, all disputes relating to service matters of educational institution managed and administered by Private Management can be adjudicated by Jharkhand Education Tribunal in terms of Section 8 of the said Act. However, the question herein is whether merely because there is an alternative remedy available with the Petitioner, the writ court is denuded from entertaining a writ petition or not.

17. Hon'ble Supreme Court recently in the case of Godrej Sara Lee Limited (supra), has held 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 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.

5.A little after the dawn of the Constitution, a Constitution Bench of this Court in its decision reported in [1958] SCR 595 (State of Uttar Pradesh v. Mohammad Nooh) had the occasion to observe as follows :-

"10. In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute, (Halsbury's Laws of England, 3rd Edn., Vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies...."

6. At the end of the last century, this court in paragraph 15 of its decision reported in (1998) 8 SCC 1 (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai) carved out the exceptions on the

existence whereof a writ court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. The same read as under:

(i) where the writ petition seeks enforcement of any of the fundamental rights;

(ii) where there is violation of principles of natural justice;

(iii) where the order or the proceedings are wholly without jurisdiction;

or

(iv) where the vires of an Act is challenged.

7. Not too long ago, this court in its decision reported in [2021] SCC Online SC 884 (Assistant Commissioner of State Tax v. Commercial Steel Limited) has reiterated the same principles in paragraph 11.

8. That apart, we may also usefully refer to the decisions of this Court reported in (1977) 2 SCC 724 (State of U. P. v. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of India v. State of Haryana). What appears on a plain reading of the former decision is that whether a certain item falls within an entry in a sales tax statute, raises a pure question of law and if investigation into facts is unnecessary, the High Court could entertain a writ petition in its discretion even though the alternative remedy was not availed of; and, unless exercise of discretion is shown to be unreasonable or perverse, this Court would not interfere. In the latter decision, this court found the issue raised by the appellant to be pristinely legal requiring determination by the High Court without putting the appellant through the mill of statutory appeals in the hierarchy. What follows from the said decisions is that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available.'

18. It is trite law that merely because an alternative remedy has been provided under the relevant statute, would not bar the remedy of High Court to issue prerogative rights under Article 226 of the Constitution of India, as the said powers are plenary in nature. It is the self-imposed limitation or restrains which is followed by Constitutional Courts in not entertaining the writ petition, where there exists an effective alternative remedy.

19. In the present case, it is an admitted fact that when the Petitioner filed writ petition, Jharkhand Education Tribunal was not functioning and the present writ application was entertained by this Hon'ble Court. It is only during the pendency of the present writ application that

Jharkhand Education Tribunal became functional. In the meantime, period of almost two years have expired and in the opinion of this Hon'ble Court, the Petitioner should not be relegated at this stage to avail the alternative remedy available to it before Jharkhand Education Tribunal as it would be too harsh upon the Petitioner to relegate her to avail alternative remedy when the writ petition has already been entertained due to non-functioning of the Jharkhand Education Tribunal. Accordingly, the first issue of maintainability on the ground of alternative remedy is answered in favour of the Petitioner.

20. The second issue which arises for consideration before this Hon'ble Court is the very maintainability of the writ petition in respect of service dispute involving a private educational institution and its employees to be adjudicated under Article 226 of the Constitution of India. The Hon'ble Supreme Court in the case of St. Mary's Education Society (supra), was considering the very same issue which would be evident from the following paragraphs:-

'2.1 (a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution? 2.2 (b) Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution?

3. In order words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?'

21. The Hon'ble Supreme Court in the said decision after considering its several earlier decisions have summarized its conclusion as under:-

'75. We may sum up our final conclusions as under:

75.1. 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.

75.2. 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.

75.3. 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.

75.4. Even if it be perceived that imparting education by private unaided school is a public duty within the expanded expression of the term, an employee of a non-teaching 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 non-teaching 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 non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered with 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.

75.5. 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.'

22. The aforesaid decision was subsequently considered by Hon'ble Supreme Court in the case of Army Welfare Education Society, New Delhi (supra), and in the said decision vide paragraph 42, it was held as under:-

'42. In view of the aforesaid, nothing more is required to be discussed in the present appeals. We are of the view that the High Court committed an egregious error in entertaining the writ petition filed by the respondents herein holding that the appellant society is a "State" within Article 12 of the Constitution. Undoubtedly, the school run by the Appellant Society imparts education. Imparting education involves public duty and therefore public law element could also be said to be involved. However, the relationship between the respondents herein and the appellant society is that of an employee and a private employer arising out of a private contract. If there is a breach of a covenant of a private contract, the same does not touch any public law element. The school cannot be said to be discharging any public duty in connection with the employment of the respondents.'

23. A reading of the aforesaid judgments would clearly demonstrate that Hon'ble Supreme Court in categorical terms have declared that in the matters pertaining to service dispute between the employees and the management of private institutions, no writ petition would be maintainable even though the said private institutions can be said to be discharging public duties. There is no dispute in the aforesaid proposition of law.

24. However, the Petitioner has vehemently relied upon the decision of Hon'ble Court Supreme Court in the case of Marwari Balika Vidyalaya (supra), and emphasized that the distinguishing factor between the judgment rendered by the Hon'ble Court Supreme Court in the cases of St. Mary's Education Society and Army Welfare Education Society, New Delhi (supra), and the case of the present Petitioner has been noticed in the case of Marwari Balika Vidyalaya (supra). It has been submitted that Section 57A(1) of the Jharkhand State Universities Act, 2000 provides for regulatory measures for regulating the terms and conditions of the employees of aided and unaided educational

institutions and, in view of the provisions of Section 57A(1) of the Jharkhand State Universities Act, 2000, the judgments of the Hon'ble Court Supreme Court in the cases of St. Mary's Education Society and Army Welfare Education Society, New Delhi (supra), are clearly distinguishable.

25. I have carefully examined the decision of Hon'ble Court Supreme Court in the case of Marwari Balika Vidyalaya (supra), and the relevant paragraphs of the said decision are quoted herein under:-

'12. Firstly, we examine the question with respect to the maintainability of the writ application. It has been clearly averred in the writ application that the appointment was, at first instance, on probation for two years. It is not in dispute that in the instant case that approval of the appointment had been made with retrospective effect 1-1-2001 and no approval admittedly has been obtained for the purpose of removal passed on 20-2-2001. There is a clear pleading in the writ application that the approval was necessary, its denial in reply is evasive. No such approval had been obtained in the instant case. It is apparent that the Government has also pleaded in its reply that approval of appointment was made necessary considering the arbitrariness in the appointments which was prevailing, and once approval for appointment was necessary there is no doubt that approval for removal was also necessary, which was not obtained in the instant case.

13. In Raj Kumar v. Director of Education [Raj Kumar v. Director of Education, (2016) 6 SCC 541 : (2016) 2 SCC (L&S) 111] this Court held that Section 8(2) of the Delhi School Education Act, 1973 is a procedural safeguard in favour of employee to ensure that order of termination or dismissal is not passed without prior approval of Director of Education to avoid arbitrary or unreasonable termination/dismissal of employee of even recognised private school.

Moreover, this Court also considered the Objects and Reasons of the Delhi School Education Act, 1973 and came to the conclusion that the termination of service of the driver of a private school without obtaining prior approval of Director of Education was bad in law. This Court observed : (SCC p. 560, para 45)

"45. We are unable to agree with the contention advanced by the learned counsel appearing on behalf of the respondent school. Section 8(2) of the DSE Act is a procedural safeguard in favour of an employee to ensure that order of termination or dismissal is not passed without the prior approval of the Director of Education. This is to avoid arbitrary or unreasonable termination or dismissal of an employee of a recognised private school."

14. This Court has laid down in Raj Kumar v. Director of Education [Raj Kumar v. Director of Education, (2016) 6 SCC 541 : (2016) 2 SCC (L&S) 111] that the intent of the legislature while enacting the Delhi School Education Act, 1973 (in short "the DSE Act") was to provide security of tenure to the employees of the school and to regulate the terms and conditions of their employment. While the functioning of both aided and unaided educational institutions must be free from unnecessary governmental interference, the same needs to the reconciled with the conditions of employment of the employees of these institutions and provision of adequate precautions to safeguard their interests. Section 8(2) of the DSE Act is one such precautionary safeguard which needs to be followed to ensure that employees of educational institutions do not suffer unfair treatment at the hands of the management.

15. Writ application was clearly maintainable in view of aforesaid discussion and more so in view of the decision of this Court in Ramesh Ahluwalia v. State of Punjab [Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715] in which this Court has considered the issue at length and has thus observed : (SCC pp. 336-37, paras 13 & 14)

"13. In the aforesaid case [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] , this Court was also considering a situation where the services of a Lecturer had been terminated who was working in the college run by the Andi Mukti Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust. In those circumstances, this Court has clearly observed as under : (V.R. Rudani case [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] , SCC pp. 700-701, paras 20 & 22)

'20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article

12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non- fundamental rights. The words "any person or authority"

used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.

* * *

22. Here again, we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of

this law, Professor de Smith states:"To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract". [Ed. : S.A. de Smith, Judicial Review of Administrative Action (4th Edn., Stevens & Sons Ltd., London 1980) at p. 540.] We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available "to reach injustice wherever it is found". Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellant on the maintainability of the writ petition.'

The aforesaid observations have been repeated and reiterated in numerous judgments of this Court including the judgments in Unni Krishnan [Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645 : 1 SCEC 523] and Zee Telefilms Ltd. [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] brought to our notice by the learned counsel for the appellant Mr Parikh.

14. In view of the law laid down in the aforementioned judgment of this Court, the judgment of the learned Single Judge [Ramesh Ahluwalia v. State of Punjab, 2009 SCC OnLine P&H 11755] as also the Division Bench [Ramesh Ahluwalia v. State of Punjab, 2010 SCC OnLine P&H 13111] of the High Court cannot be sustained on the proposition that the writ petition would not maintainable merely because the respondent institution is a purely unaided private educational institution. The appellant had specifically taken the plea that the respondents perform public functions i.e. providing education to children in their institutions throughout India."

(emphasis supplied)

21. In view of the aforesaid discussion, we have no hesitation to hold that the writ application is maintainable as rightly held [Asha Srivastava v. State of W.B., 2009 SCC OnLine Cal 242] by the Division Bench of the High Court.'

26. The facts of the case of Marwari Balika Vidyalaya (supra), is same to the facts of the present case, in as much as in the present case also there exists statutory provisions under Section 57A(1) of the Jharkhand State Universities Act, 2000 which provides for approval of JPSC to be obtained before an order of appointment, dismissal, removal or termination of service of a teacher is passed by the Governing Body of the Affiliated Minority College. Section 57A(1) of the

Jharkhand State Universities Act, 2000 is quoted herein under:-

'57. Appointment of teachers and officers.-

1[57A. (1) Appointment of teachers of affiliated Colleges not maintained by

the State Government shall be made by the Governing Body on the recommendation of the Jharkhand Public Service Commission. Dismissal, termination, removal, retirement from service or demotion in rank of teacher of such colleges shall be done by the Governing Body in consultation with the 2[Jharkhand Public Service Commission in the manner prescribed by the Statutes:-

Provided that the Governing Bodies of affiliated minority Colleges based on religion and language shall appoint, dismiss, remove or terminate the services of teachers or take disciplinary action against them with the approval of the Jharkhand Public Service Commission:

Provided further that the advice to the Jharkhand Public Service Commission shall not be necessary in cases involving censure, stoppage of increment or crossing of efficiency bar and suspension till investigation of charges is completed.

3(a) [x x x ]

3(b) [x x x ]

1[(c) For the purpose of absorbing the services of the teacher of the affiliated colleges, who were appointed by the governing body of the colleges against the sanctioned posts before the establishment of the College Service Commission and whose services have been approved by the University as also the services of such teachers who were appointed by the governing body on the recommendations of the University Service Commission (Dissolved College Service Commission) as the case may be, approval of the Bihar State University (Constituent Colleges) Service Commission shall be necessary, and such teachers shall be absorbed in the University Service from the date of making the College constituent and their seniority shall be determined according to the rules prescribed in the Statutes.]

Legislative changes (after 1982)-In this section clause (c) of sub section (2) was substituted by Ordinance 4 of 1985 which continued by successive Ordinances till Act 3 of 1990 was enacted. Prior to its substitution, this clause read as follows:-

"(c) the consent of University Service Commission shall not be required for the meager of services of teacher of affiliated colleges appointed against the posts created by the Governing Bodies before the formation of the College Service Commission and whose services are approved by the University on the recommendation of University Service Commission/College Service Commission. Service of such teachers shall be merged in the University Service, as they are from the date of conversion shall be determined in accordance with the procedure laid down in the Statutes."

27. In the case of Marwari Balika Vidyalaya (supra), Hon'ble Court Supreme Court considered the decision in the

case of Raj Kumar v. Director of Education reported in (2016) 6 SCC 541, wherein similar provisions were there in the Delhi Education Act, 1973 for obtaining approval of Director of Education before passing any order of termination or dismissal from service. It was held in the said case that the said safeguard which has been provided in respect of functioning of both aided and unaided educational institution is a precautionary safeguard which needs to be followed to ensure that employees of educational institutions do not suffer unfair treatment at the hands of the management.

28. Section 57A(1) of the Jharkhand State Universities Act, 2000 provides for similar safeguard and, in view of the same, in my considered opinion, the judgments of Hon'ble Court Supreme Court in cases of St. Mary's Education Society and Army Welfare Education Society, New Delhi (supra), are clearly distinguishable and, on the contrary, the judgment of Hon'ble Court Supreme Court in the case of Marwari Balika Vidyalaya (supra) and Raj Kumar (supra), would be applicable in the facts and circumstances of the present case.

29. In the present case, Respondent-JPSC has granted post facto approval dated 28.06.2023 regarding dismissal order of the Petitioner passed by Respondent-College. The safeguard as provided under Section 57A(1) of the Jharkhand State Universities Act, 2000 in the present case has been complied though post facto by Respondent-JPSC. Thus, one of the issues which would arise while adjudicating the writ petition on merit is whether 'JPSC' could have granted any post facto approval to the dismissal order passed by Respondent- College.

30. In my view, the examination of the said question in the writ petition would definitely come within the purview of public element and would be amenable to writ jurisdiction of

this Hon'ble Court. Thus, the second issue is also answered in favour of the Petitioner and against the Respondent No. 3.

31. In view of the cumulative facts and circumstances mentioned herein above, I declare that the instant writ application is maintainable and is required to be heard by this Hon'ble Court on its own merit.

32. Accordingly, the present matter is directed to be listed after two weeks' to enable the parties to get themselves prepared for adjudication on merits of the instant writ petition. Accordingly, list this case on 21.10.2024.

(Deepak Roshan, J.)

Amardeep/