Guru Govind Singh Education ... vs Sone Lal Burman
2021 Latest Caselaw 4809 MP

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                                                          R.P. No.1148/2020




               The High Court of Madhya Pradesh

                      R.P.No.1148/2020
(Guru Gobind Singh Educational Society and another Vs. Sone Lal
                     Burman and others)

Jabalpur, Dated :31.08.2021


          Shri Pankaj Dubey, learned counsel for petitioners.

          Respondent No.1 Sone Lal Burman is present in person.

Petitioners have filed an application i.e. I.A. No.7771/2020 for condonation of delay of 388 days in filing of review petition.

2. Counsel appearing for petitioners submitted that delay occurred as appeal was pending before Division Bench. After withdrawal of appeal, review petition was filed immediately. It is submitted that delay in filing of review petition was not intentional or malafide and same is bonafide in nature. Delay has properly been explained by petitioners.

3. No reply of delay application has been filed by respondents.

4. Registry has reported that there is delay of 122 days in filing of review petition.

5. Considering the grounds mentioned in application, I.A. No.7771/2020 is allowed. Delay in filing of review petition is hereby condoned.

6. Counsel appearing for petitioners submitted that W.P. No.1758/2017 (Sonelal Burman Vs. State of M.P. and others) was allowed vide order dated 15.10.2019. Petitioner society had filed an appeal against the order passed by Single Bench in another W.P. No.7537/2012 (Akhilesh Tripathi and others Vs. The State of M.P.),

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order dated 04.12.2017. Said order was relied upon in case of Sonelal Burman, petitioner therein. Division Bench in W.A. No.1004/2018 (Guru Ramdas Khalsa Institute of Science & Technology, Pharmacy, Jabalapur and another Vs. Akhilesh Tripathi and others) has allowed the appeal vide order dated 05.02.2020 and set aside the order passed in writ petition. Division Bench held that writ petition against society for enforcement of private contract of service is not maintainable. Order dated 05.02.2020 in writ appeal is passed in respect of same educational society which suffered ordere of reinstatement of Sonelal Burman in W.P. No.1758/2017. Petitioners had challenged order dated 15.10.2019 passed in case of Sonelal Burman in writ appeal bearing No.1856/2019. Said appeal was withdrawn with liberty to file review petition against order dated 15.10.2019 as ground of maintainability of writ petition filed by respondent No.1 was not considered and decided in writ petition. In view of same, liberty has been granted by Division Bench to seek review of order dated 15.10.2019.

7. Counsel appearing for petitioners submitted that respondent No.1 namely Sone Lal Burman had filed writ petition before this Court against order dated 21.08.2014 and order dated 02.12.2016. By said orders, services of respondent No.1 was terminated. Respondent Nos.3 and 5 in said writ petition were Guru Govind Singh Educational Society and Principal of Guru Ramdas Khalsa Institute of Science & Technology, who are petitioners in this review petition. Respondent No.1 has sought relief against society and institute run by society. Said institute is Unaided College run by Shri Guru Govind Singh Educational Society. It is submitted by petitioner that writ petition against the private society though they are performing public function is not maintainable as no public law element is involved in enforcement of private

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contract of service.

8. In writ petition of Sonelal Burman, it was conceded by counsel appearing at that time for respondent Nos.3 to 5 that writ petition was maintainable in view of judgment passed by Apex court in case of Marwari Balika Vidyalaya, therefore, Court proceeded to hear the matter on its merits. Petitioner in writ appeal and review raised the issue again on basis of judgment passed by Apex Court in Ramkrishna Mission and order passed in W.A. No.1004/2018 and liberty granted to them in W.A. No.1856/2019. As concession given earlier is not recorded in order of W.P. No.1758/2017, therefore, review petition is taken up for hearing on question of maintainability of writ petition against society.

9. Counsel appearing for petitioners relied on judgment passed by Apex Court in case of Ramkrishna Mission and another Vs. Kago Kunya and others, reported in (2019) 16 SCC 303 and also on judgment passed by Division Bench of this Court holding that writ petition filed against petitioners i.e. Guru Gobind Singh Educational Society in W.A. No.1004/2018 is not maintainable. In view of judgment passed by Division Bench in respect of same society which is petitioner in this case and also considering case of Ramkrishna Mission and another (supra), writ petition filed by respondent No.1 against Private Unaided Educational Institution, where no public law element is involved and in respect of enforcement of private contract of service is not maintainable.

10. Counsel appearing for petitioners also submitted that respondent No.1 was not appointed under College Code Statute 2007 and terms and conditions of service are governed by contract of service. In view of aforesaid submissions, he made a prayer for recalling of order dated 15.10.2019 passed in W.P. No.1758/2017.

11. Respondent No.1 submitted that he was appointed on

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30.12.2010 as Lecturer, Electrical and Electronics Engineering. Appointment was of permanent nature and he was appointed on probation for period of seven months and after completion of probation continued in service. He was appointed as per AICTE Regulations. Respondent No.1 was shown as per permanent employee by petitioners in information which has been sent to Rajiv Gandhi Praudyogiki Vishwavidyalaya, Bhopal. Since respondent No.1 was appointed as per College Code, therefore, he could not have been terminated without conducting departmental enquiry in accordance with College Code.

12. Counsel for petitioners further submitted that writ petition under Article 226 of the Constitution of India is maintainable against a Private Unaided Institution as same is involved in doing public and sovereign function of State of imparting education.

13. Respondent No.1 argued that he was appointed as per College Code. College Code Statute was enacted under Section 38 sub-section (1) read with Section 37 of Rajiv Gandhi Praudyogiki Vishwavidyalaya Adhiniyam, 1998. College Code Statute 2007 (Statute 30) has statutory force. Respondent No.5 Institute is affiliated with Rajiv Gandhi Praudyogiki Vishwavidyalaya, Bhopal. Petitioner society i.e. petitioner No.1 and Institution i.e. petitioner No.2 are governed by College Code Statute 2007. As per Statute 3 of Code College Statute 2007, the College Code shall apply to all colleges admitted to privilege of University except the Colleges maintained and managed by State Government or Municipal Corporation or the University. In view of aforesaid provision, College Code Statute 2007 is applicable to petitioners. College Code also lays down appointment of Teachers in Colleges and their service conditions. Service condition of petitioners are regulated by College Code 2007. Petitioners are running their College as they

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are affiliated by Rajiv Gandhi Praudyogiki Vishwavidyalaya and Statute enacted under Rajiv Gandhi Praudyogiki Vishwavidyalaya Adhiniyam. Petitioners cannot blow hot and cold at the same time. Petitioners send their annul report to University showing compliances of College Code for getting affiliation, send list of teachers (P-19) to University showing compliances and when a permanent staff claims rights under Code, same is refused on ground he is not appointed as per College Code. Petitioners as per mandate of law and rule of law are required to follow College Code and their actions contrary to it is to be struck down as illegal. They can not be allowed to take advantage of infraction of law done by them. As per Code 20 (1) of College Code 2007, no appointment to any teaching post in College including the post of Principal but excluding part time appointment, temporary appointment which are not to be continued for more than 6 months and appointment to post which to be filled by promotion shall be made after vide advertisement of the post together with minimum qualification prescribed by AICTE along with emoluments of the post and appointment shall be made after recommendation of Selection Committee constituted in accordance with provision of paragraph 17 below for Non-Grantee Colleges. As per the Code, all appointments are to be made under the College Code only, therefore, unless they are appointed for not more than 6 months and to post for which appointments are to be made by promotions. As College Code regulates service condition of petitioner, therefore, writ petition under Article 226 of the Constitution of India is maintainable.

14. Respondent No.1 relied on Apex Court judgment passed in case of Marwari Balika Vidyalaya Vs. Asha Shrivastava, reported in (2020) 14 SCC 449. It is submitted that in said case,

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services of Assistant Teacher working in Private Unaided Institution was terminated. Apex Court in case of Marwari Balika Vidyalaya (supra) held that writ petition is maintainable against Private Unaided Educational Institution and, therefore, order dated 15.10.2019 passed in W.P. No.1758/2017 was rightly passed by this Court.

15. Heard the counsel for petitioners and respondent No.1.

16. Question before this Court for consideration is whether writ petition under Article 226 of the Constitution of India against Private Unaided Institution controlled by society is maintainable against termination of service.

17. Division Bench of this Court in W.A. No.1004/2018 in case of Guru Ramdas Khalsa Institute of Science & Technology, Pharmacy, Jabalpur and another Vs. Akhilesh Tripathi and others vide order dated 05.02.2020 has held that even a body discharges public function in a wider sense but public law element is not involved in enforcement of a private contract of service. In view of same, writ petition filed against society was held to be not maintainable vide order dated 05.02.2020 in W.A. No.1004/2018.

18. Apex Court in case of Ramkrishna Mission and another Vs. Kago Kuniya and others has held that if body discharges public function in wider sense, there is no public law element involved in the enforcement of private contract of service. Contract of purely private nature could not be subject to writ jurisdiction merely by reason of fact that they are instructed by statutory provisions. The only exception to the principle arises in situation where the contract of service is governed or regulated by statutory provisions.

19. In case of Marwari Balika Vidyalaya (supra), Apex Court held that writ petition under Article 226 of Constitution of India was maintainable against Private Unaided Educational Institutions.

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It was held so by the Apex Court as in that case approval of State Government was required for appointment and removal from service.

20. This Court in case of Guru Ramdas Khalsa Institute of Science and Technology, Pharmacy, Jabalpur and another Vs. Akhilesh Tripathi and others in W.A. No.1004/2018 held in para sub-para 39 of para 10 as under:-

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

21. Considered the orders passed by Apex Court in case of Federal Bank Limited Vs. Sagar Thomas and others, reported in 2003 (10) SCC 733 and para 18 is quoted as under:-

"18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority;(iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii)

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a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function."

(emphasis supplied)

22. Para 34 of Apex Court judgment in case of Ramkrishna Mission (supra) is quoted as under:-

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

23. Allahabad High Court in case of Rajesh Kumar Shrivastava and others Vs. State of U.P. and others, reported in 2020 SCC OnLine All 73, in para 19 (52) held as under:-

52. It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely:

(i) when the employee is a public servant working under the Union of India or State;

(ii) when such an employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India; and

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(iii) When such an employee is "workmen" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act.

In the first two cases, the employment ceases to have private law character and "status" to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the Labour Court/Industrial Tribunal to grant reinstatement in case termination is found to be illegal."

24. Considered aforesaid judgments of Apex Court and High Courts and facts and circumstances of this case. Facts emerges in this case are :

(i) petitioners are private bodies;

(ii)petitioners are not receiving any grant-in-aid from government;

(iii) no statutory liability is imposed upon petitioners to impart higher education;

(iv) imparting higher education is not a public duty. Citizen does not have any fundamental right for higher education;

(v) citizens have fundamental right to primary education as declared by Article 21-A of the Constitution of India but a citizen does not have any right for higher education;

(vi) University i.e. R.G.P.V. has control over appointment and termination of services of teachers appointed in colleges affiliated to it.

25. On considering aforesaid facts and circumstances of the

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case, as petitioners are not performing any statutory duty or obligation imposed upon them by Statute but are only governed by Statute so as to maintain discipline and maintain standards to impart higher education to students, therefore, it cannot be said that only because petitioners are governed by College Code, writ petition for enforcement of rights of respondent under Article 226 of the Constitution of India is maintainable before this Court.

26. Review petition filed by petitioners is allowed. Order dated 15.10.2019 passed in W.P. No.1758/2017 is recalled and writ petition is dismissed as not maintainable.

(VISHAL DHAGAT) JUDGE sp/-

SUNIL Digitally signed by SUNIL KUMAR PATEL DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya

KUMAR Pradesh, 2.5.4.20=3ad456309c8cfa67fdf9acdac6949 bbc6ea3342f02b1af1bdaf3424a04c11d99, pseudonym=EB80E81424E3C3A3FCB5801 D65B573419C2D9C68,

PATEL serialNumber=5011B37A3DD5E32019F501 F10E878D2F118732491B5F40BDC9923237 D954365B, cn=SUNIL KUMAR PATEL Date: 2021.09.07 16:04:56 +05'30'