Avinash Shrivastava vs The State Of Madhya Pradesh
2021 Latest Caselaw 8893 MP

                                                                               1                                     WP-26768-2021
                                              The High Court Of Madhya Pradesh
                                                       WP No. 26768 of 2021
                                         (AVINASH SHRIVASTAVA AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS)


                                     Jabalpur, Dated : 16-12-2021
                                            Shri Akash Choudhary, learned counsel for the petitioner.

                                            Shri Darshan Soni, learned Govt. Advocate for the respondents/State.

The present petition has been filed challenging the inaction on the part of the respondents-authorities in not releasing the salaries of the petitioners from the month of January, 2021 to June, 2021 in which the petitioners have

discharged their duties as Teachers in the respondents/Institutions.

A serious objection is raised by the counsel appearing for the State regarding maintainability of the writ petition as the relief sought is against the private institution.

Counsel appearing for the petitioner has brought to the notice of this Court an order passed by the Hon'ble Supreme Court in the case of Marwari Balika Vidyalaya Vs. Asha Srivastava and others reported in 2019 SCC Online SC 408 wherein the Hon'ble Supreme Court has held that the petition against the private unaided institution is maintainable and has held

as under :-

"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 & Ors. (supra) in which this court has considered the issue at length and has thus observed:

''€œ13. in the aforesaid case, 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, 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 Signature Not Verified SAN

relevant only for the purpose of enforcement of fundamental rights Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.22 10:45:13 IST 2 WP-26768-2021 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. 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 and Zee Telefilms Ltd. 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 as also the Division Bench 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 Signature Not Verified SAN educational institution. The appellant had specifically taken the plea Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.22 10:45:13 IST 3 WP-26768-2021 that the respondents perform public functions i.e. providing education to children in their institutions throughout India."

(emphasis supplied)

16. It is apparent from the aforesaid decisions that the Writ Application is maintainable in such a matter even as against the private unaided educational institutions."

It is pointed out that the school in question that is the respondent No.4 is imparting public duty and is imparting education to the students at large. Therefore, the writ petition under Article 226 of the Constitution of India is maintainable.

Considering the judgment passed by the Hon'ble Supreme Court in the

aforesaid case and the fact that the respondent No.4/Institution is imparting education and is doing public duty, therefore, this Court deems it appropriate to hold that the petition against the private institution is also maintainable. As far as the merits of the case are concerned, the petitioners submit that they have already preferred a detailed representation for redressal of their grievances before the respondent No.4 and an innocuous prayer is made to direct the respondent No.4 to consider and decide the representation expeditiously.

Counsel appearing for the State has no objection to the innocuous prayer made by the petitioner and submits that the petition may disposed of, directing the respondent No.4 to decide the representation.

In view of the facts and circumstances of the case, as this Court has held that the petition is maintainable against the respondent No.4/Institution, the petition is disposed of directing the petitioners to file a certified copy of this order before the respondent No.4; and in turn the respondent No.4 is directed to dwell upon the representation and pass a self contained speaking order and communicate the outcome to the petitioner within a period of 45 days from the date of receipt of certified copy of this order.

Needless to mention here that this Court has not commented upon the Signature Not Verified SAN merits of the case.

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.22 10:45:13 IST 4 WP-26768-2021 With the aforesaid observations, this petition is disposed of.

(VISHAL MISHRA) JUDGE

AM

Signature Not Verified SAN

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.22 10:45:13 IST