Shashi Bhushan Pandey vs Central Board Of Secondary ...
2022 Latest Caselaw 12238 MP

                                                       1
                                  IN THE HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                      BEFORE
                                      HON'BLE SHRI JUSTICE MANINDER S BHATTI
                                             ON THE 14th OF SEPTEMBER, 2022

                                        WRIT PETITION No. 20783 of 2022

                               BETWEEN:-
                               SHASHI BHUSHAN PANDEY S/O LATE SHRI B.D.
                               PANDEY, AGED ABOUT 47 YEARS, OCCUPATION:
                               TGT PHYSICS IN DAV HCL PUBLIC SCHOOL
                               MALANJKHAND DISTRICT BALAGHAT M.P.
                               MIG   11/13  HOUSING    BOARD    COLONY
                               SHANTINAGAR KATNI DISTRICT KATNI M.P.
                               (MADHYA PRADESH)

                                                                              .....PETITIONER
                               (BY SHRI NAVEEN DUBEY, ADVOCATE )

                               AND
                          1.   CENTRAL BOARD OF SECONDARY EDUCATION
                               SHIKSHA KENDRA 2 THROUGH ITS SECRETARY
                               COMMUNITY CENTRE PREET VIHAR NEW
                               DELHI 100092 (DELHI)

                          2.   THE GENERAL SECRETARY / DIRECTOR
                               THROUGH ITS PRESIDENT / DIRECTOR DAV
                               COLLEGE      MANAGING       COMMITTEE
                               CHITRAGUPT ROAD NEW DELHI (DELHI)

                          3.   THE ASSISTANT REGIONAL OFFICER DEV
                               SCHOOL M.P. ZONE R/O JPA DAV PUBLIC
                               SCHOOL NEAR FCI GODOWN PURENI P.O.
                               CHAKA KATNI M.P. (MADHYA PRADESH)

                          4.   THE PRINCIPAL DAV HCL PUBLIC SCHOOL
                               MALAJKHAND BALAGHAT (AFFILIATION NO.
                               1030969) DISTRICT BALAGHAT M.P (MADHYA
                               PRADESH)

                          5.   SHRI    S.K. SINHA     S/O NOT    KNOWN
                               OCCUPATION: THE ASSISTANT REGIONAL
                               OFFICER DAV SCHOOL M.P. ZONE R/O JPA DAV
                               PUBLIC SCHOOL NEAR FCI GODOWN PURENI
                               P.O. CHAKA KATNI M.P. (MADHYA PRADESH)

                          6.   SHRI   R.P.   MISHRA     S/O   NOT   KNOWN
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 9/20/2022
11:53:22 AM
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                                      OCCUPATION: PRINCIPAL DAV HCL PUBLIC
                                      SCHOOL MALAJKHAND       BALAGHAT R/O
                                      MALAJKHAND       BALAGHAT      DISTRICT
                                      BALAGHAT M.P. (MADHYA PRADESH)

                                                                                          .....RESPONDENTS
                                      (BY SHRI RAJESH MAINDIRETTA, ADVOCATE)
                                      ( BY SHRI MANOJ KUSHWAHA, ADVOCATE FOR CAVEATOR)

                                 This petition coming on for admission this day, th e court passed the
                          following:
                                                                 ORDER

The petitioner has filed this petition while praying for the following reliefs:-

"7.(i) To issue an appropriate writ in the nature of CERTIORARI

for quashment of impugned undated order issued in the month of August, 2022 ( ..../08/2022) by respondent No. 2. Accordingly, also quash the transfer order dated 03-09-2022, issued by the respondent No. 3 and relieving order dated 05-09-2022 ( Annexure P/1) issued by respondent No.4.

(ii) To direct the respondents No. 2 to 4 to permit the petitioner to perform the duties of TGT Physics at DAV HCL Public School, Malajkhand, Balaghat (affiliation No. 1030969), District-Balaghat (M.P.).

(iii) To call the relevant records for kind perusal of this Hon'ble Court.

(iv) Any other relief, this Hon'ble Court deemded appropriate under the facts and circumstances of the instant case."

The counsel for the petitioner contends that the respondents have issued a transfer order in August 2022, which has not been communicated to the petitioner and on the strength of the said transfer order, the petitioner is being relieved vide order dated 05-09-2022 contained in Annexure P/1. The counsel Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/20/2022 11:53:22 AM

for the petitioner submits that the order impugned has been passed in a malafide manner inasmuch as, the petitioner herein had applied for transfer on his own request from Balaghat to Katni in terms of Clause 10.2 of the Policy. The petitioner was highlighting his grievance as regards anomaly in the pay-scale as well as his designation as TGT Physics whereas the petitioner ought to have been appointed as PGT Physics. Thus, the counsel submits that the order has been issued in malafide exercise of powers inasmuch as, without even supplying the transfer order to the petitioner, the petitioner is being sought to be transferred to DAV, Vedanta International School Lanjigarh, District-Odisha. The counsel for the petitioner submits that since the DAV School established by DAV Society is imparting education which is Public function therefore, the same falls within the ambit of 'State' in terms of Article 12 of the Constitution of India. The counsel has relied upon the decision of the Apex court in the case of Ramesh Ahluwalia vs State Of Punjab & Ors 2012 (12) SCC 331, Raj Kumar vs Dir.Of Education & Ors 2016 (6) SCC 541, Marwari Balika Vidyalaya vs Asha Srivastava 2020 (14) SCC 449 and also decision of the Gwalior Bench of this court in WP No. 5202/16.

The counsel further submits that the order impugned deserves to be quashed as the Apex court in the case of Marwari Balika Vidyalaya Vs. Asha Srivastava reported in (2020) 14 SCC 449 has already decided that an

institution imparting education performs public duty and therefore, the same is amenable to writ jurisdiction.

Per contra, learned counsel for the respondents while relying the decision of the High Court of Chhatisgarh in WP(s) No. 3592/2015( Bhuvneshwari Jaiswal Vs. The Director ( PSIII) DAV College Managing Committee,

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/20/2022 11:53:22 AM

Chitra Gupta Road, New Delhi and others ) submits that in a case of DAV Public School, it has been held by the High Court of Chhattisgarh that no writ petition is maintainable, when transfer of an employee is assailed before the Court. The counsel submits that the High Court of Chhattisgarh while referring to the decision of the Apex Court in Ramesh Ahluwalia Vs. State of Punjab and others (2012) 12 SCC 331 concluded that in the case of transfer of an employee, no public law element is involved therefore, a Writ against DAV Public School is not maintainable.Thus, the counsel submits that since the present petition is not maintainable, therefore, no interference is warranted.

Having heard the rival submissions of parties, in order to bring a private institution within the ambit of State as defined under Article 12 of the Constitution of India, the basic requirement is to the effect that such private institutions should discharge public duties/functions and even if a private Institution is amenable to writ jurisdiction, every dispute concerning, the said private institution is not amenable to writ jurisdiction. A dispute pertaining to transfer of an employee cannot be said to be a Public Function inasmuch as, the transfer of an employee of DAV Public School Society is governed with the provisions of the Policy, which is brought on record as Annexure P/10. Therefore, the right of the petitioner if any, originates from the said Policy, which cannot be enforced taking aid of Writ Jurisdiction irrespective of the fact that DAV Public School is discharging public duties/functions as has been held recently by the Apex Court in Civil Appeal No. 5789/22 ( St. Mary's Education Society and another Vs. Rajendra Prasad Bhargava and others ).

The Apex Court while dealing with the earlier judgment including the judgment in Marwari Balika Vidyalaya (supra) held in paragraph- 57 to 61 Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/20/2022 11:53:22 AM

as under :-

"57. We may say without any hesitation that the respondent No. 1 herein cannot press into service the dictum as laid down by this Court in the case of Marwari Balika Vidhyalaya (supra) as the said case is distinguishable. The most important distinguishing feature of the case of Marwari Balika Vidhyalaya (supra) is that in the said case the removal of the teacher from service was subject to the approval of the State Government. The State Government took a specific stance before this Court that its approval was required both for the appointment as well as removal of the teacher. In the case on hand, indisputably the government or any other agency of the government has no role to play in the termination of the respondent No. 1 herein.

58. In context with Marwari Balika Vidhyalaya (supra), we remind ourselves of the Byelaw 49(2) which provides that no order with regard to the imposition of major penalty shall be made by the disciplinary authority except after the receipt of the approval of the disciplinary committee. Thus unlike Marwari Balika Vidhyalaya (supra) where approval was required of the State Government, in the case on hand the approval is to be obtained from the disciplinary committee of the institution. This distinguishing feature seems to have been overlooked by the High Court while passing the impugned order.

59. In Marwari Balika Vidhyalaya (supra), the school was receiving grant in-aid to the extent of dearness allowance. The appointment and the removal, as noted above, is required to be approved by the District Inspector o f School (Primary Education) and, if any action is taken dehors such mandatory provisions, the same would not come within the realm of private element.

6 0 . In Trigun Chand Thakur (supra), the appellant therein was appointed as a Sanskrit teacher and a show cause notice was issued upon him on the ground that he was absent on the eve of the Independence day and the Teachers day which resulted into a dismissal order passed by the Managing Committee of the private school. The challenge was made by filing a writ petition before the High Court which was dismissed on the ground that the writ petition is not maintainable against an order terminating the service by the Managing Committee of the private school. This Court held that even if the private school was receiving a financial aid from the Government, it does not make the said Managing Committee of the school a "State"Â within the meaning of Article 12 of the Constitution of India.

61. Merely because a writ petition can be maintained against the private individuals discharging the public duties and/or public functions, the same should not be entertained if the enforcement is sought to be secured under the realm of a private law. It would not be safe to say that the moment the private institution is amenable to writ jurisdiction then every dispute concerning the said private institution is amenable t o writ jurisdiction. It largely depends upon the nature of the dispute and the enforcement of the right by an individual against such institution. The right which purely originates from a private law cannot be enforced taking aid of the writ jurisdiction irrespective of the fact that such institution is discharging the public duties and/or public functions. The scope of the mandamus is basically limited to an enforcement of the public duty and, therefore, it is an ardent duty of the court to find out whether the nature of the duty comes within the peripheral of the public duty. There must be a public law element in any action."

Thereafter, the Apex Court concluded in following terms:-

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/20/2022 11:53:22 AM

"68. We may sum up our final conclusions as under:

(a) 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, fo r 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.

(b) 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 "ÂœState"Â within the expansive definition under Article 12 or it was found that the action complained of has public law element.

(c) 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 o r controlled b y t he 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 recognized 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.

(d) Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a non-ƒ 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 ÂA or ÂB is employed by school to discharge that duty.

In any case, the terms of employment of contract between a school and 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 b y the employer in contravention of law may be interfered 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.

(e) From the pleadings in the original writ petition, it is apparent that no element of Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/20/2022 11:53:22 AM

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."

Thus, in the light of the aforesaid judgment of the Apex Court, the issue pertaining to transfer does not have any nexus with Public functions or Public Duty, on the contrary, the same falls within the ambit of transfer policy. The incident of transfer is not even remotely connected with Public Duty/Functions unless the transfers orders are issued at mass scale effecting large number of employees.

So far as the contents of paragraph Nos. 5.2 and 5.3 are concerned, even a perusal of the same shows that the DAV Public School/Society is undisputedly a Non- Governmental Educational Organisation. It is not a case of the petitioner that the institution receives Grant-in-Aid from the Government. It is also not the stand of the petitioner that the Government has deep and pervasive control over the administration and functions of the DAV Society.

Thus, in the present case, the petitioner has failed to establish that a writ petition against the DAV Society in the matter of transfer is maintainable and accordingly, the present petition stands dismissed as not maintainable.

(MANINDER S BHATTI) JUDGE PG

Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/20/2022 11:53:22 AM