Jharkhand High Court

Al-Kabir Polytechnic vs Sabir Daud on 9 April, 2025

Author: Deepak Roshan

Bench: Deepak Roshan

                                                      2025:JHHC:10997-DB


       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  L.P.A. No. 493 of 2023
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Al-Kabir Polytechnic, situated at Kabir Nagar, P.O. Kapali, P.S. Chandil, District Seraikella Kharsawan (Jharkhand), through its Principal namely Waris S. Imam, aged about 50 years, son of Late Md. Zafar Imam, resident of Bari Nagar, Telco, P.O. and P.S. Telco, Town Jamshedpur, PIN 831004, District East Singhbhum.

.....Appellant

Versus

1. Sabir Daud, aged about 59 years, son of Late Abdul Mojeeb Daudi, resident of 1st More, Kabir Nagar, Near Al-Kabir Polytechnic, P.O. Kapali, P.S. Chandil, District Saraikella- Kharsawan, Jharkhand.

2. The State of Jharkhand, through the Secretary, Department of Higher & Technical Education, Government of Jharkhand, having its office at Nepal House, Doranda, P.O. and P.S. Doranda, District Ranchi.

3. Director, Higher Education, having its office at Nepal House, Doranda, P.O. and P.S. Doranda, District Ranchi.

4. Jharkhand University of Technology, through its Registrar, having its office at Science & Technology Campus, Sirkha Toli, Namkum, P.O. and P.S. Nakum, District Ranchi.

.....Respondents

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CORAM:              HON'BLE THE CHIEF JUSTICE
                HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant    : M/s. Sumeet Gadodia, Shilpi Sandil

Gadodia, Shruti Shekhar, Sanya Kumari, Nillohit Choubey, Nidhi Lall, K. Hari, Advs. For the Resp.-State : Mr. Shivam Singh, A.C. to S.C.-II

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12/ Dated: 09.04.2025 Heard both the sides.

2. This Letters Patent Appeal is preferred against the

judgment dated 08.08.2023 of the learned Single Judge in W.P. (S)

No. 2336 of 2023.

3. The respondents herein had approached this Court by

filing the said writ petition for a direction to the appellant herein

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to pay accumulated earned leave to the tune of 164 days during

the service period of the petitioner.

4. The learned Single Judge in the impugned order

proceeded on the assumption that the writ petition is

maintainable against the appellant because payment of leave

encashment is a facet of salary. He also held that the appellant

was performing a public duty, i.e., imparting education and that

there is also a violation of Article 23 of the Constitution of India.

5. Challenging the same, the appellant is before this

Court.

6. Counsel for the appellant placed reliance on the

judgment of the Supreme Court in St. Mary's Education Society

and Another v. Rajendra Prasad Bhargava and Others

reported in (2023) 4 Supreme Court Cases 498. In the said

judgment the Supreme Court held at para 75 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

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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

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agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character.)"

7. In para 75.3 referred to above, the Supreme Court has

categorically held that even if the Educational Institution like the

appellant performs a public duty and its actions become

amenable to judicial review by constitutional courts, persons like

the 1st respondent, who is the appellant's employee would not

have the right to invoke the powers of the High Court under

Article 226 of the Constitution of India in respect of matters

relating to service where they are not governed or controlled by

the statutory provisions.

8. It also laid down the test that the act complained of

against an educational institution must have a direct nexus with

the discharge of public duty and 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 of

India.

9. Admittedly, the appellant is a Minority Institution

running a Polytechnic and the 1st respondent was working there

as a Lab Assistant. The Rules framed by the appellant institution

have no statutory force. The claim of the appellant for encashment

of earned leave is purely in the realm of a private contract

between the appellant and the 1st respondent and even if the

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appellant is said to be discharging a public duty, the action

complained of by the 1st respondent does not have any direct

nexus with the discharge of the public duty.

10. We, therefore, hold that the learned Single Judge

erred in entertaining the writ petition and granting relief to the 1st

respondent against the appellant.

11. Accordingly, the appeal is allowed and the judgment

of the learned Single Judge is set aside. Liberty is granted to the

1st respondent to approach Civil Court/Educational Tribunal for

appropriate relief. Pending IAs, if any, also stands closed.