Jharkhand High Court
Nirmala College Through Its Secretary vs State Of Jharkhand Through Its ... on 4 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 63 of 2025
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Nirmala College through its Secretary, Governing Body,
Nirmala College, Sister Sushma Beck, aged about 55
years, Daughter of Late Tarcicius Beck working at of
Nirmala College, Parastoli, Doranda, P.O. Box No. 15, P.O.
& P.S. Doranda, District Ranchi, Jharkhand -834002 and
resident of Taldanga, Dhanbad P.O. & P.S. Dhanbad,
District Dhanbad, Jharkhand-828206
... ...Respondent No. 3/Appellant
Versus
1.State of Jharkhand through its Secretary, Project
Bhawan, P.O. & P.S. Dhurwa, District Ranchi, Jharkhand,
PIN-834004.
2.Jharkhand Public Service Commission through its
Secretary, P.O. G.P.O, P.S. Kotwali, District Ranchi,
Jharkhand-834001.
3.Ranchi University through its Registrar, Shahid Chowk,
P.O. G.P.O., P.S. Kotwali, District Ranchi, Jharkhand-
834001.
... ... Respondents No. 1, 2 & 4/Respondents
4.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/Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Sumeet Gadodia, Advocate
Mr. Nipun Bakshi, Advocate
Mr. Shubham Sinha, Advocate
Mr. C. Vijay, Advocate
Mr. Nillohit Choubey, Advocate
Ms. Shruti Shekhar, Advocate
Ms. Sanya Kumari, Advocate
Mr. K. Hari, Advocate
For the Resp.-State : Mr. Ashutosh Anand, AAG-III
Mr. Sahbaj Akhtar, AC to AAG-III
For the Resp.-JPSC : Mr. Abhay Prakash, Advocate
Mr. Amritanshu Singh, Advocate
Mr. Durgesh Agarwal, Advocate
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For the Resp. No.3 : Mr. Anoop Kr. Mehta, Advocate
Mr. Manish Kumar, Advocate
Mr. Pratyush, Advocate
For the Resp. No.4 : Mr. Indrajit Sinha, Advocate
Mr. ShubhashisRasikSoren, Adv
Ms. Shobha Gloria Lakra, Advocate
Ms. Mrinalini Adela Tete, Advocate
Ms. Preeti Hembrom, Advocate
Ms. Singi Sharon Devita, Advocate
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CAV on 25/02/2025 Pronounced on 04/04/2025
Per Sujit Narayan Prasad, J:
Prayer
1. The instant intra-court appeal, under Clause 10 of the
Letters Patent, has been preferred for quashing and
setting aside order dated 04.10.2024 passed by learned
Single Judge in W.P. (S) No. 5791 of 2022 whereby and
whereunder the preliminary objection raised by the
appellant-Nirmala College [respondent no. 3 in the writ
petition] has been rejected by holding the writ petition to
be maintainable.
2. This Court, before entering into the issue on fact, needs to
refer herein that the office had pointed out the issue of
maintainability of the instant intra-court appeal on the
ground that the instant appeal has been filed against
order dated 04.10.2024 passed in W.P. (S) No. 5791 of
2022, from perusal of which it transpires that the writ
petition is still pending, as such in view order dated
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05.07.2010 passed in L.P.A. No. 195 of 2010, the instant
intra-court is not maintainable.
3. This Court, therefore, first heard the matter of
maintainability of the instant intra-court appeal and after
having heard learned counsel for the parties had decided
the 'issue of maintainability' of the instant intra-court
appeal vide order dated 19th December, 2024 and held
that the objection raised by the office on the issue of
maintainability of the instant appeal is over-ruled.
4. It further needs to refer herein that the writ petitioner-
respondent no. 4 herein had filed Caveat being Caveat No.
264 of 2024, which is on record. The caveator-writ
petitioner has put his appearance in the instant appeal, as
would be evident from order dated 12th February, 2025.
On that date, the direction was passed to supply the copy
of memo of appeal to the writ petitioner-respondent no. 4
herein for hearing the matter on merit that is regarding
the order maintainability of the writ petition, which is
impugned in the instant appeal.
5. Accordingly, the copy of memo of appeal was handed over
to writ petitioner, who is being represented by Mr. Indrajit
Sinha, assisted by learned counsel Mr. Shubhashis Rasik
Soren.
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6. This Court before further delving into the issue needs to
refer herein the factual aspect as per the pleading on
behalf of the appellants.
Factual Matrix:
7. The facts, as per the pleading made in the writ petition, is
that the writ 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
8. Further case of the writ petitioner is that there was
inordinate delay in release of arrears of her salary due to
6th Pay Revision with effect from 01.01.2006 and as such
the writ petitioner repeatedly made representation to
Respondent-College but her grievances were not addressed
by the College and, on the contrary, departmental
proceedings vide Memorandum dated 21.10.2022,
whereby departmental proceedings was initiated against
the petitioner by respondent No. 3-Nirmala College.
Aggrieved thereof, the petitioner approached this Court by
filing writ petition challenging Memorandum dated
21.10.2022, whereby departmental proceedings was
initiated against the petitioner as well as order contained
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in letter dated 14.11.2022, whereby Respondent-3 Nirmala
College declined to supply relevant documents to the writ
petitioner.
9. However, during pendency of the writ petition, an order
was passed by Respondent No. 3-College imposing
punishment of dismissal of service dated 03.03.2023 in
the departmental proceedings and even Respondent-
Jharkhand Public Service Commission (JPSC) granted
post facto approval to the same vide order dated
28.06.2023, which was challenged by filing Interlocutory
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 writ petitioner in which following
reliefs were sought, which are quoted 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
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
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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.
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10. The writ application was listed before the learned Single
Judge for hearing on 23.09.2024 and, on the said date,
Mr. Sumeet Gadodia, learned counsel appearing for
Respondent No. 3/appellant herein 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.
11. Accordingly, the matter was heard by learned Single Judge
on the preliminary objection regarding maintainability of
the writ petition.
12. Submission was made on behalf of appellant-College that
the college is 'Private Minority Aided Educational Institute'
and it receives grant-in-aid from the State Government for
payment of salary to some of its teachers. Submission has
been made that the Nirmala College, the appellant herein,
is not the State within the meaning of Article 12 of the
Constitution of India or even authority amenable under
Article 226 of the Constitution of India.
13. Further submission was made that the writ 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
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existence of such alternative remedy, writ petition should
not be entertained.
14. It was further 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.
15. In support of his submission, learned counsel for the
appellant-college has relied upon the judgment rendered
in the case of St. Mary's Education Society & Ors v.
Rajendra Prasad Bhargava & Ors reported in (2023) 4
SCC 498 and in the case of Army Welfare Education
Society, New Delhi v. Sunil Kumar Sharma &Ors.
reported in 2024 SCC OnLine SC 1683.
16. While on the other hand, Mr. Indrajit Sinha, learned
counsel for the writ petitioner submitted that mere
existence of an alternative remedy under the JET Act,
2005 cannot be treated as a bar upon the Court in
entertaining a writ petition. He has further submitted that
the case laws cited by the appellant-college are not
applicable in this case and in support of his submitted, he
relied upon the judgment rendered in the case of Marwari
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Balika Vidyalaya v. AshaSrivastava & Ors. reported in
(2020) 14 SCC 449.
17. The writ Court, having heard learned counsel for the
parties, held that the instant writ application is
maintainable and is required to be heard by this Court on
its own merit. Accordingly, the matter was directed to be
listed after two weeks' to enable the parties to get
themselves prepared for adjudication on merits of the
instant writ petition.
18. Being aggrieved with the said order by which the writ
petition was held to be maintainable, the appellant has
approached this Court.
Submission on behalf of appellant-college
19. Mr. Sumeet Gadodia, learned counsel for the appellant-
Nirmala College has taken the following grounds in
assailing the impugned order.
20. The college in question has been registered under the
Society Registration Act and having no pervasive control
either of the State or Ranchi University and as such in
absence thereof, the institution in question, the Nirmala
College, cannot be said to be 'State' within the meaning of
Article 12 of the Constitution of India or even 'Authority'
said to be amenable under Article 226 of the Constitution
of India.
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21. Further submission has been made that the writ petition
can be said to be maintainable against the private entity
as per the judgment rendered in the case of St. Mary's
Education Society & Ors v. Rajendra Prasad
Bhargava & Ors (supra) but that is only with respect to
the issue if there is involvement of public element but
herein the issue of public element is lacking rather for the
individual grievance, regarding the issue of termination
order passed against the writ petitioner, it has been
questioned, as such the college being the private entity,
the writ will not lie agitating the issue of individual
grievance pertaining to the issue of termination.
22. Learned counsel for the appellant-college has further
submitted that the learned Single Judge has erred in
passing the order by differentiating the view taken by the
Hon'ble Apex Court in the case of St. Mary's Education
Society v. Rajendra Prasad Bhargava & Ors. (supra)
and distinguishing the same by putting reliance upon the
judgment rendered by Hon'ble Apex Court in the case of
Marwari Balika Vidyalaya v. Asha Srivastava & Ors
(supra).
23. It has been contended, by referring to paragraph 57A(1) of
the Jharkhand State Universities Act, 2000, upon which
the learned Single Judge has also relied upon, that even
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the aforesaid statutory provision does not mandate any
interference of anybody said to be State within the
meaning of Article 12 of the Constitution of India, which
would be evident from perusal of Section 57A(1) of the
Jharkhand State Universities Act, 2000 [hereinafter
referred to as 'Act, 2000'].
24. Learned counsel, based upon the aforesaid ground, has
submitted that the order passed by the learned Single
Judge, therefore, suffers from infirmity and as such is not
sustainable in the eye of law.
Submission on behalf of Resp. no. 4-writ petitioner
25. While on the other hand, Mr. Indrajit Sinha, learned
counsel for the writ petitioner, respondent no. 4 herein,
has submitted that the writ petition is well maintainable.
He has defended the order passed by the learned Single
Judge by taking the following grounds.
26. Submission has been made that the writ petition is well
maintainable if the provision of Section 57A(1) of the Act,
2000 will be taken into consideration. It has been
contended that the aforesaid statutory provision provides
that prior to initiation of departmental proceeding
approval of the Jharkhand Public Service Commission
[hereinafter referred to as 'Commission'] is mandatorily
required and even at the stage of appointment or dismissal
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or removal or compulsory retirement approval of
commission is required.
27. The contention therefore has been raised that since in
absence of approval of the Commission the order passed,
after conclusion of departmental proceeding of either of
the nature i.e., either dismissal or removal or compulsory
retirement, will not attain its finality and the Commission
being the constitutional body, any decision taken by the
college in question will be within the domain of High Court
under the power of judicial review as conferred under
Article 226 of the Constitution of India.
28. The contention has been raised that the college in
question is the minority institution based upon the
religion, as such it is coming under the fold of Section 57
(1) of its first proviso and that even before initiation of
departmental proceeding the approval of the Jharkhand
Public Service Commission is required and even after its
conclusion and even at the time of appointment of one or
the other employee.
29. The argument has been advanced that the appointment of
the writ petitioner is against the sanctioned post and for
the aforesaid particular post, the Government has also
facilitated by giving the financial aid by way of grant-in-aid
and in that view of the matter it is incorrect on the part of
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college in question to take the ground that the order
passed by the college in question is not amenable under
Article 226 of the Constitution of India.
30. It has been argued that the learned Single Judge after
considering the judgment rendered in the Marwari
Balika Vidyalaya v. Asha Srivastava & Ors. (supra)
and distinguishing it with the case of St. Mary's
Education Society v. Rajendra Prasad Bhargava
(supra) has come to the conclusive finding by holding
that the writ petition is maintainable which cannot be said
to suffer from error reason being that the judgment
rendered in the case of St. Mary's Education Society v.
Rajendra Prasad Bhargava (supra) upon which much
reliance has been placed by the learned counsel for the
appellant is totally the minority school wherein the
Marwari Balika Vidyalaya, the subject matter in the
judgment rendered in the case of Marwari Balika
Vidyalaya v. Asha Srivastava & Ors. (supra) is within
the control of the State said to be pervasive control and as
such the reliance of the judgment rendered in the case of
St. Mary's Education Society v. Rajendra Prasad
Bhargava (supra) in the facts and circumstance of the
present case will not be applicable rather the ratio of the
judgment rendered in the case of Marwari
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BalikaVidyalaya v. Asha Srivastava & Ors. (supra) is
applicable.
31. Learned counsel for the writ petitioner-respondent no. 4
on the aforesaid ground has submitted that there is no
infirmity in the impugned order.
Submission on behalf of respondent-University
32. Mr. Anoop Kumar Mehta, learned counsel appearing for
the respondent-Ranchi University has submitted that the
writ petition is well maintainable in view of the fact that
the college in question is governing under the Jharkhand
State Universities Act, 2000 particularly Section 57A and
the statute as contained under Statute 32 which deals
with the management and constitution of the governing
body of the religious minority colleges.
33. The reference of the provision as contained under Statute
No. 32 as available under Rule 24 thereof has been made,
where it has been provided that the teachers of every
admitted college shall be appointed within budget
provision and may be suspended, dismissed or discharged
by the Governing Body in accordance with the provision as
contained in the ordinance or statutes.
34. Learned counsel for the University has further submitted
that in view of the specific provision in this regard to have
a control of the University, the Statute is there in the
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University Act and as such it is incorrect on the part of the
college to take the ground that the college in question is
not under the pervasive control of the University and/or
the State.
Submission on behalf of respondent-JPSC
35. Mr. Abhay Prakash, learned counsel appearing for the
Jharkhand Public Service Commission, has submitted
that as per mandate as contained under Section 57A and
proviso thereto, the approval of the Commission is
required to be there.
Analysis
36. We have heard learned counsel for the parties at length
and gone across the finding recorded by learned Single
Judge as also the relevant provisions of Jharkhand State
University Act, 2000 and the Statute as also the case laws
cited by learned counsel for the parties.
ISSUES FOR DETERMINATION
37. This Court on the basis of argument advanced on behalf
of learned counsel for the parties, deems it fit and proper
to frame following issues for adjudication of lis involved
herein:
I. Whether the appellant-Nirmala College comes
under the fold of Article 12 of the Constitution of India
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so that a writ petition under Article 226 of the
Constitution can be held to be maintainable against it?
II. Whether the appellant-Nirmala College is said to
be an ―authority‖, so as to be amenable under the writ
jurisdiction of this Court under Article 226 of the
Constitution of India?
III. Whether the dispute between the writ petitioner
and appellant-College warrants interference under the
judicial review jurisdiction of this Hon'ble Court under
Article 226 of the Constitution of India on the ground
that it involves public element?
38. This Court, before considering the issue of maintainability
of the writ petition assailing the order of termination
passed by the Nirmala College, the appellant herein, is of
the view that the some admitted facts are required to be
referred herein.
39. The college in question, Nirmala College, has been
established under the Society of Registration Act, 1860
document to that effect has been filed in the
supplementary affidavit showing the registration of the
college in question bearing registration no. 46/1973-74.
Further, the college in question, the appellant herein, is
the minority religious institution and the affiliation has
been granted by the University and as such the appellant,
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the college in question, is an affiliated college under the
fold of Jharkhand State Universities Act, 2000.
40. The affiliated college has been defined under Section 2(c),
which says that affiliated College means educational
institution having received privileges of the University
according to the provisions of this Act and University
Statutes relating thereto.
41. The reference of University Grants Commission Act, 1956
is also required to be made. The said Act has come into
being on 3rd March, 1956 for the purpose of making
provision for the co-ordination and determination of
standards in Universities across the country. Section 26
thereof mandates that all the colleges are to follow the
UGC Regulation. For ready reference, Section 26 of the
UGC Act, 1956 is quoted as under:
26(1).The Commission [may, by notification in the Official
Gazette, make regulations] consistent with this Act and the
rules made thereunder-
(a) regulating the meetings of the Commission and the
procedure for conducting business thereat;
(b) regulating the manner in which and the purposes for which
persons may be associated with the Commission under section
9;
(c) specifying the terms and conditions of service of the
employees appointed by the Commission;
(d) specifying the institutions or class of institutions which may
be recognised by the Commission under clause (f) of sub-section
2;
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(e) defining the qualifications that should ordinarily be required
of any person to be appointed to the teaching staff of the
University, having regard to the branch of education in which
he is expected to give instruction;
(f) defining the minimum standards of instruction for the grant
of any degree by any University;
(g) regulating the maintenance of standards and the co-
ordination of work or facilities in Universities.
[―(h) regulating the establishment of institutions referred to in
clause (ccc) of section 12 and other matters relating to such
institutions;
(i) specifying the matters in respect of which fees may be
charged, and scales of fees in accordance with which fees may
be charged, by a college under sub-section (2) of section 12A;
(j) specifying the manner in which an inquiry may be conducted
under sub-section (4) of section 12A;‖]
(2) No regulation shall be made under clause (a) or clause (b) or
clause (c) or clause (d) 2 [or clause (h) or clause (j) or clause (j)]
of sub-section (1) except with the previous approval of the
Central Government.
[(3) The power to make regulations conferred by this section
[except clause (i) and clause (j) of subsection (1)] shall include
the power to give retrospective effect from a date not earlier
than the date of commencement of this Act, to the regulations or
any of them but no retrospective effect shall be given to any
regulation so as to prejudicially affect the interests of any
person to whom such regulation may be applicable.‖]
42. The fact about regulation by the UGC Act has not been
disputed and it cannot be disputed reason being that in
absence of the regulation having not been formulated
under the UGC Act, 1956 no college can be allowed to run
particularly if a college in question is affiliated one and the
institution is minority based institution.
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43. Herein, learned counsel for the appellant-college has
admitted the fact that the post of the teaching and non-
teaching staff has also been sanctioned by the State
Government. The post, from which the writ petitioner has
been dispensed with from service by passing the order of
termination on conclusion of the departmental proceeding,
is also stated to be sanctioned one and the salary was
backed by the grant-in-aid against the aforesaid particular
post, which the writ petitioner was holding.
44. Further, herein the reference of the Jharkhand State
Universities Act, 2000 requires to be made, in particular
Statute 32, which is statute regarding Governing Body,
which takes care of the management and constitution of
the governing body of the religious linguistic minorities,
which says that there shall be a Governing Body
constituted for management and administration of every
admitted college other than college owned and maintained
by the State Government or College established and
administered by religious linguistic minorities or admitted
as Technical or Medical Colleges.
45. It is evident from Statute 32 of the Manual of Bihar
Universities Laws that the details condition which is
mandatorily to be followed has been provided therein
under the caption head 'Management and constitution of
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Governing Body'. For ready reference, extract of provision
of statute No. 32 is being referred herein along with the
relevant provision:
"32.STATUTES REGARDING GOVERNING BODY
Management and constitution of Governing Body
1. There shall be a Governing Body constituted for
management and ad-ministration of every admitted college
other than college owned and maintained by the State
Government or College established and administered by
religious linguistic minorities or admitted as Technical or
Medical colleges which shall consist of the following
members:-- (i) Principal of the College-Ex-officio.
(ii) One teacher elected from and by the teachers of the
College.
(iii) One representative of the University nominated by the
Syndicate.
(iv) One Government Officer of the State Government not
below the rank of the Sub-divisional Magistrate posted in
the district nominated by the Syndicate.
(V) One member elected from amongst themselves by
Donors who have donated not less than Rs. 25,000/- to the
college.
(vi) One member either of Parliament or the State Legislature
residing in the district preferably of the locality where the
college is situated nominated by the Syndicate.
(vii) One member co-opted by the Governing Body from
amongst the educationist or persons noted for their
academic interest residing in the district where the college is
situated:
Provided that in the case of colleges owned and maintained
by the Government, the Governing Body consisting of seven
members shall be constituted by the Syndicate in
consultation with the State Government:
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Provided further that in the case of colleges established and
administered by minorities based on religion or language or
Medical/Engineering colleges other than those maintained
by the Government the Governing Body shall be constituted
by the Syndicate after considering the advice of the
sponsors authorities of the college concerned. But where
however the Syndicate is not able to satisfy itself about the
bonafides of sponsors authorities of any such college or for
any other reason it may constitute an Ad-hoc committee
consisting of not more than 5 members.
(2) (i) If for any reason the Governing Body of an admitted
college is not constituted, the Syndicate shall constitute an
Ad-hoc committee of not more than five members until the
Governing Body is constituted. The President and the
Secretary of the Ad-hoc committee shall be nominated by the
Vice-Chancellor.
(ii) If any difficulty arises in the formation or the filling up of
any seat in the Governing Body of any admitted college for
any reason what-so-ever, the Syndicate shall on its own
initiative or on reference to it shall decide the issue. If any-
body, however, is dissatisfied with the decision of the
Syndicate, he shall have the right of appeal to the
Chancellor within thirty days of the decision whose decision
thereon shall be final and binding on the persons concerned.
(i) Every admitted college shall maintain a separate register
in which names and addresses of such persons as have
donated not less than Rs. 25,000 to the college shall be
entered. The register so maintained shall be kept up-to-date
by endorsing, from time to time, all additions or corrections
thereto.
(ii) The list of donors who have donated Rs. 25,000 or more
shall be prepared by the principal and scrutinised by the
University Auditor and approved by the Syndicate.
(iii) The list of donors containing names of all such donors
from whom do-nations have been received up to 31st July
shall be published every year by 31st August and put up on
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college and University Notice Boards and intimation thereof
shall be notified in a newspaper.
(iv) Every objection relating to inclusion or non-inclusion of
the name of any person in the list of donors shall be filed
before the Registrar within 15 days of the publication of the
Notice in the Newspapers and the Syndicate, after
considering the objections, if any, shall decide the matter.
(v) The list of donors, as finally approved by the Syndicate
shall form the basis for election, if any, to be held before the
publication of the next list.‖
46. It is evident from the aforesaid provision that for
constitution of Governing Body for management and
administration of every admitted college, other than owned
and maintained by the State Government or college
established and administered by religious linguistic
minorities college or admitted as Technical or Medical
Colleges, the members will be principal of the college, one
teacher, one representative of the University, one
Government officer of the State Government not below the
rank of Sub-divisional Magistrate and other members.
Thus, it is evident that in the Governing Body there are
members from the State Government as also from the
University.
47. It further needs to refer herein that the terms of the
members has been provided under statute no. 32(3).
'Functions of the Governing Body' has been provided
under statute 32(5). The submission of returns and
reports is also to be provided as provided by the syndicate
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of the University. All other parameters like issue of
submissions of returns and reports; inspection; games
and physical training; medical; fees and annual charges;
library; committee for free studentship; vacation and
Holidays; professor-in-charge of the college; stock taking;
grant-in-aid; college fund and accounts; college building &
furniture and the college staffs have been referred therein.
48. So far grant-in-aid is concerned, it has been provided
thereunder that all applications for grant-in-aid shall be
made by the Governing Body and the admitted college in
the manner prescribed by the rule made by the syndicate.
So far as the issue of college staff is concerned, it has been
provided under provision 24(1) of the Statute 32 that
teachers of every admitted college shall be appointed
within the budget provision and may be suspended,
dismissed or discharged by the Governing Body in
accordance with the provisions laid down in the Ordinance
and the Statutes. For ready reference, provision 21 and 24
are being quoted as under:
―21.All applications for grant-in-aid shall be made by the
Governing Body of an admitted college in the manner
prescribed by rules by the Syndicate.
24(1).Subject to the provisions of the Statute made in that
behalf, teachers of every admitted college shall be appointed
within the budget provision and may be suspended, dismissed
or discharged by the Governing Body in accordance with the
provisions laid down in the Ordinance and the Statutes.
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(2)The non-teaching and ministerial staff of every admitted
college shall be appointed on sanctioned posts and within the
budget provision and may be suspended, dismissed or
discharged by the Governing Body.
The non-teaching staff shall have the right of appeal to
the Syndicate within thirty days of receipt of any such order.
(3)The inferior staff of every admitted college shall be appointed
on sanctioned posts and within the budget provision and may
be suspended, dismissed or discharged by the Principal,
subject to a right or appeal by the aggrieved person to the
Governing Body of the college within 30 days of receipt of any
such order.‖
49. The purpose of making reference of these provisions as
referred hereinabove is to have consideration regarding the
control over the college said to be pervasive control by the
State and the university concerned.
50. It further needs to refer herein the provision of Section 57-
A of the Jharkhand Universities Act, 2000 along with its
proviso, which is quoted as under:
'57. Appointment of teachers and officers.-
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 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:
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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 ]
[(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.‖
51. It is thus evident from the provision of Section 57A(1) of
the Act, 2000 that the appointment of teachers of
affiliated Colleges not maintained by the State Government
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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 Jharkhand Public Service
Commission in the manner prescribed by the Statutes.
52. From the proviso of Section 57A(1), it is evident 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 and further that 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.
53. The provision of Section 57-A of the Jharkhand State
University Act, 2000 speaks that the 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
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colleges shall be done by the Governing Body in
consultation with the 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.
54. Therefore, from the aforesaid provision it is evident that it
deals with the issue of appointment of teachers of
affiliated Colleges, which are not maintained by the State
Government. The first proviso clearly stipulates that the
Governing Bodies of affiliated minority Colleges, which are
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 whereas the
second proviso speak that the advice to the Jharkhand
Public Service Commission shall not be necessary in cases
involving censure, stoppage of increment or crossing of
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efficiency bar and suspension till investigation of charges
is completed.
55. From the above provision it is amply evident that the
Governing Body makes these appointments based on
recommendations from the Jharkhand Public Service
Commission. The Governing Body makes appointments,
dismissals and promotions for teachers at affiliated
colleges and consults with the JPSC when making
decisions about teachers' dismissal, removal and
demotion.
56. So far proviso to Section 57A(1) are concerned; in the first
proviso consultation of Jharkhand Public Service
Commission is mandatory by the Governing Bodies of
affiliated minority Colleges to appoint, dismiss, remove or
terminate the services of teachers or take disciplinary
action against them; whereas in the second proviso which
deals with the issue involving censure, stoppage of
increment or crossing of efficiency bar and suspension till
investigation of charges is completed in such
circumstances, the advice to the Jharkhand Public Service
Commission shall not be necessary.
57. The argument which has been advanced on behalf of
learned counsel for the appellant that even there is a
provision under Section 57A(1) of the Act, 2000 under its
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first proviso even then the college in question hereinabove
cannot be said to be under pervasive control of the
University.
58. Further argument has been advanced that only in a case
of public element the writ petition will lie. It has been
argued that the learned Single Judge has considered the
college in question to be an authority which cannot be
said to be proper.
59. Learned counsel for the appellant-college has taken the
ground, in order to assail the order passed by learned
Judge, that 'with the approval of the JPSC' cannot be said
to be the proper approval and approval can be obtained
even after final decision having been taken on conclusion
of the departmental proceeding in a case of punishing
having been inflicted upon the concerned delinquent
employee.
60. The reference of the judgment rendered in the case of U.P.
Avas Evem Vikas Parishad & Anr. Vs. Friends Coop.
Housing Society Ltd. [1995 Supp. (3) SCC 456] on the
issue of approval said to be prior or not.
61. However, we before going through the factual aspect of the
aforesaid judgment again need to refer herein the some
facts of the present case.
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62. The admitted case, as per the pleading and argument
advanced by the parties, is that the writ petition was filed
initially challenging the decision to initiate departmental
proceeding due to want to approval of the JPSC. The
college has taken final decision by concluding the
departmental proceeding by inflicting the order of
termination from service. The said order of termination
was challenged by filing Interlocutory Application seeking
leave of this Court to allow the writ petitioner to make it
part of the writ petition. The said Interlocutory Application
being I.A. No. 7549 of 2023 was allowed vide order dated
14.09.2023.
63. It is a fact that in the first proviso to Section 57A (1), there
is no reference of the word 'prior approval of the JPSC'
rather the word is 'with the approval of JPSC'. Therefore,
the emphasis upon the argument has been given that the
said approval can be at any stage even after passing of the
order of termination.
64. But we are not in agreement with the said argument
reason being that the first proviso to Section 57A(1),which
is particularly applicable in 'the college' in question being
the affiliated minority college based on religion and also
come under the fold of Statute 32 wherein at the stage of
appointment, dismissal, removal or termination of the
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services of the teachers, the Governing Body of the such
affiliated college is required to take approval of Jharkhand
Public Service Commission. In addition thereto, the word
is to take disciplinary action against them which will also
be with the approval of the Jharkhand Public Service
Commission meaning thereby at the stage of appointment
the approval of Jharkhand Public Service Commission is
required and at the stage of major punishment to the
effect of dismissal, removal or termination of the services
of the teachers, the approval of Jharkhand Public Service
Commission is required. Even at the time of taking
decision of disciplinary against the teachers the approval
of the Jharkhand Public Service Commission is required.
65. The first proviso therefore is very much specific that even
at the stage of initiation of departmental proceeding the
same will be with the approval of the Jharkhand Public
Service Commission.
66. Herein, the admitted case is that the decision to initiate
departmental proceeding was not with the approval of the
Jharkhand Public Service Commission and the
disciplinary proceeding has been allowed to continue
which ultimately resulted into termination from service of
the writ petitioner.
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67. Therefore, this Court, on interpretation of Section 57A(1)
of the Act, 2000, is of the view that since the specific
command has been provided under the aforesaid proviso
that even at the stage of taking disciplinary proceeding,
the same will be with the approval of the Jharkhand
Public Service Commission and once the disciplinary
proceeding has been concluded then it is not available for
the disciplinary authority to take the ground that the
approval can be sought for at any time even after order of
termination having been passed on conclusion of
departmental proceeding.
68. If the word to the effect that to take disciplinary
proceeding against the teachers with the approval of
Jharkhand Public Service Commission would not have
been there in the first proviso to Section 57A(1) then what
has been submitted on behalf of the appellant can be said
to be correct but that is not the legal requirement.
69. This Court further is of the view that the moment the
learned counsel for the college has started interpreting the
statutory provision as contained under Section 57-A (1) of
the University Act, 2000, which itself means that the fact
about binding nature of the statutory provision as
contained under Section 57A(1) is being admitted and the
argument has been advanced that is regarding the
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interpretation of the issue of approval of the stage of
approval by the Commission.
70. The stage of approval of the JPSC can be one aspect of the
matter but once it is being admitted regarding the fact
about the stage of approval which means that even the
appellant is admitting the fact that the provision of Section
57A(1) binds the college under the first proviso to the
aforesaid Section.
71. The reliance of the judgment upon which the issue of
approval has been taken note by the Hon'ble Apex Court
as in the case of U.P. Avas Evem Vikas Parishad & Anr.
Vs. Friends Coop. Housing Society Ltd. (supra) has also
been taken.
72. We have gone through the factual aspect and for ready
reference, the factual aspect of the said case, as referred in
paragraph 3 needs to refer herein, which reads as under:
3. Declaration under Section 3 was published on 3-9-1977.
Notification under Section 28 of the U.P. Avas Evam Vikas
Parishad Adhiniyam, 1965 (for short ‗the Adhiniyam') was
published on 7-6-1982. Immediately the appellant had sought
for the approval of the Government through the letter dated 27-
7-1982. The Government approved the scheme on 24-8-1982.
The declaration under Section 32 of the Adhiniyam was
published on 28-2-1987. The respondents filed Writ Petition No.
14708 of 1984. The Division Bench following the ratio in Writ
Petition No. 17372 of 1987 dated 18-3-1993 titled Narinder
Mohan Foundation Trust v. Special Land Acquisition
Officer allowed the writ petition declaring that since prior
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approval of the Government was not obtained under Exception
(iii) to Section 59(1)(a) of the Act, the notification under Section
28, which is equivalent to Section 4(1) of the Land Acquisition
Act, 1890 and the declaration under Section 32, which is
equivalent to Section 6 declaration, are invalid and inoperative.
Thus this appeal by special leave.
73. It is evident from the aforesaid factual aspect that the said
judgment is in the pretext of a statutory provision as has
been enacted by the State of Uttar Pradesh. The issue was
with respect to the issue of acquisition of the land wherein
the approval said to be the prior approval is said to be
mandatory or was the primary consideration was before
the Hon'ble Apex Court and in that respect the Hon'ble
Apex Court has held that approval does not mean prior
approval. For ready reference, the relevant paragraphs of
the judgment is quoted as under:
"5. It is to be seen that the language employed therein is that
the approval of the State Government is necessary. Question is
whether it would be prior approval or approval given
subsequent to the notification under Section 28 or declaration
under Section 32 is valid in law. If prior approval would have
been a precondition for further steps, the Act would have said
so. This not having been done, it seems to us what is material
is to obtain approval of the State Government. The reason
appears to be that when the schemes have been framed, the
land suitably required for effective implementation of the
scheme alone should be acquired and not in excess in the guise
of framing the schemes
6. This Court in Life Insurance Corpn. of India v. Escorts
Ltd. [(1986) 1 SCC 264] , considering the distinction between
―special permission‖ and ―general permission‖, ―previous
approval‖ or ―prior approval‖ in para 63 held that: ―We are
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conscious that the word ‗prior' or ‗previous' may be implied if
the contextual situation or the object and design of the
legislation demands it, we find no such compelling
circumstances justifying reading any such implication into
Section 29(1) of the Act.‖ Ordinarily, the difference between
approval and permission is that in the first case the action
holds good until it is disapproved, while in the other case it
does not become effective until permission is obtained. But
permission subsequently granted may validate the previous
Act. As to the word ‗approval' in Section 33(2)(b) of the
Industrial Disputes Act, it was stated in Lord Krishna Textiles
Mills Ltd. v. Workmen [AIR 1961 SC 860 : (1961) 1 LLJ 211] ,
that the Management need not obtain the previous consent
before taking any action. The requirement that the Management
must obtain approval was distinguished from the requirement
that it must obtain permission, of which mention is made in
Section 33(1).
7. It is seen that the approval envisaged under Exception (iii) of
Section 59(1)(a), is to enable the Parishad to proceed further in
implementation of the scheme framed by the Board. Until
approval is given by the Government, the Board may not
effectively implement the scheme. Nevertheless, once the
approval is given, all the previous acts done or actions taken in
anticipation of the approval get validated and the publications
made under the Act thereby become valid.
8. The question then is whether the present is a fit case for our
interference under Article 136. On similar facts when the
appellant itself has compromised with others and the same has
not been extended to the respondents, we think that it is not a
fit case for our interference. The respondents' society also
consists of the members who need sites for construction of their
houses. Right to shelter is a fundamental right, which springs
from the right to residence assured in Article 19(1)(e) and right
to life under Article 21 of the Constitution. No doubt their
construction has also to be in accordance with the layout and
building rules but that would not be a ground to refuse
permission to them when they approached the authorities to
sanction the same in accordance with law.‖
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74. It is relevant to refer herein that the applicability of the
judgment particularly in the context of enforcement of the
law is to be seen by taking into consideration the law if it
is pari materia otherwise if the issue of word approval has
been taken note by the Hon'ble Apex Court in the context
of different rule having not pari materia to the provision as
contained under Section 57A(1), the said judgment cannot
be said to its applicability in the facts of the particular
case.
75. Here, we are dealing with the provision of Section 57A(1)
having with the first proviso wherein the moment the word
has been inserted therein that the disciplinary action has
to be taken with the approval of the JPSC, which itself
mean that the disciplinary proceeding cannot be allowed
to be concluded without the approval of the commission.
Herein, the disciplinary proceeding has already been
concluded resulting into the order of termination.
76. The JPSC while approving the order of termination has
also made a comment that although the same is being
approved but the caution is to be taken in future, to have
the approval of the commission before taking final decision
with respect to dismissal. For ready reference, the part of
the comment made by JPSC is quoted as under:
2025:JHHC:10469-DB
,
,
,
,
,
,
, ,
28/06/23
- ०( ) , , , ,
, , /
:- -33/NCRA/2023, 20.03.2023
,
, , , ०( ) , ,
, , , ,
/ -23.06.2023
-09 /
W.P(S) No.-6556/2022 W.P(S) No.-5791/2022
,
77. The other argument is regarding the issue of public
element and only the writ petition will be allowed to be
maintainable. There is no dispute on the said issue. That
was the ratio laid down by Hon'ble Apex Court in the case
of St. Mary's Education Society v. Rajendra Prasad
Bhargava (supra) but in the case of Marwari Balika
Vidyalaya v. Asha Srivastava &Ors.(supra) the Hon'ble
Apex Court has considered the issue of control of the State
and thereby distinguished the factual aspect as was
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governing the field in the case of St. Mary's Education
Society v. Rajendra Prasad Bhargava (supra). The
issue of public element is not very relevant herein.
78. The learned counsel for the appellant-college himself has
admitted regarding the applicability of the provision of
Section 57A(1) of the Act, 2000, however, his argument is
that the issue of approval will be prior to taking the
decision or it is post facto approval.
79. Further, from the first proviso if taken together with the
statute 32 it would be evident that the statute 32 takes
care of the first proviso to Section 57A(1) since in the first
proviso to Section 57A(1) which speaks with respect to the
institution on the ground of religion and language said to
be minority institution and for the purpose of governing
and managing the statute 32 has been enacted.
80. This Court is further of the view that the moment the
approval either of the stage of the initiation of the
disciplinary action and at the time of passing the order of
dismissal the approval of the same is with the approval of
the JPSC meaning thereby the moment the word 'with the
approval of the JPSC' has been inserted in the said
provision which impliedly mean that the moment decision
has been taken by the governing body the same is by way
of one transaction needs approval by the JPSC and that
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would be the exact meaning of 'with the approval of the
JPSC'.
81. This Court, on the basis of aforesaid discussion, is of the
view that the issue as referred hereinabove is being
answered in favour of the writ petitioner and hold that the
appellant-Nirmala College comes under the fold of Article
12 of the Constitution of India so as to be amenable under
Article 226 of the Constitution of India.
82. This Court now coming to the finding recorded by learned
Single Judge has found that the learned Single Judge after
framing the issue to the effect that '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', has answered that the writ petition
would definitely come within the purview of public element
and would be amenable to writ jurisdiction of this Court.
83. But, we, on the basis of discussion made hereinabove, and
after coming to the conclusion that since the college in
question is having under the pervasive control of the
University and the State as also in view of the fact as has
been admitted by learned counsel for the appellant that
the post which was being held by the writ petitioner was
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sanctioned one, supported by grant-in-aid which was
given by the State and further being regulated under the
University Grant Commission Act and further the
provision as contained under the 57A(1) read with Statute
32, are of the view that the college in question comes
under the fold of Article 12 of the Constitution of India so
as to be amenable under Article 226 of the Constitution of
India.
84. We are conscious that Article 226 can be amenable
against the institution which is coming under the fold of
authority. But based upon the aforesaid discussion we are
of the view that the college having the pervasive control of
the university and the State and as such it cannot be
construed to be an authority within the meaning of Article
226 of the Constitution of India rather it comes under the
fold and ambit of Article 12 of the Constitution of India
being State so as to maintain a writ petition under Article
226 of the Constitution of India on the basis of
applicability of the Statute 32 and the University having
the pervasive control so far as the initiation of
departmental proceeding, dismissal, termination removal,
retirement from service or demotion in rank of teacher.
85. This Court therefore is of the view that the finding
recorded by the learned Single Judge to that effect
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requires to be modified. Accordingly the finding to that
effect is modified.
86. The instant intra-court appeal accordingly dismissed with
the aforesaid modification.
87. Pending Interlocutory Application, if any, stands disposed
of.
I Agree (Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.) (Pradeep KumarSrivastava, J.)
Alankar/-
A.F.R.
