Madhya Pradesh High Court
Uday Singh Kushwaha vs The State Of Madhya Pradesh on 28 February, 2023
Author: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 28 th OF FEBRUARY, 2023
WRIT APPEAL No. 849 of 2022
BETWEEN:-
UDAY SINGH KUSHWAHA S/O JAYRAM KUSHWAHA,
AGED ABOUT 35 YEARS, OCCUPATION: EX LECTURER,
JAYPEE POLYTECHNIC AND TRAINING CENTRE,
DISTRICT REWA, R/O VILLAGE TIKIYA, POST
BAHURIBANDH, DISTRICT REWA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAHUL DESHMUKH - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY, DEPARTMENT OF
TECHNICAL EDUCATION, MANTRALAYA,
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. THE MANAGING TRUSTEE, JAYPRAKASH SEWA
S AS TH A, 63, BASANT LOK, VASANT VIHAR
(DELHI)
3. THE REGISTRAR / VICE CHANCELLOR, JAYPEE
UNIVERSITY OF ENGINEERING AND
TECHNOLOGY, A.B. ROAD, RAGHOGARH, GUNA
(MADHYA PRADESH)
4. P R I N C I P A L JAYPEE POLYTECHNIC AND
TRAINING CENTRE, JAYPEE NAGAR, DISTRICT
REWA (MADHYA PRADESH)
5. THE AUTHORIZED SIGNATORY, JAYPEE
POLYTECHNIC AND TRAINING CENTRE, JAYPEE
NAGAR, DISTRICT REWA (MADHYA PRADESH)
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 3/4/2023
1:21:57 PM
2
.....RESPONDENTS
(SHRI B.D. SINGH - GOVERNMENT ADVOCATE FOR RESPONDENT NO.1
SHR I R.S. JAISWAL - SENIOR ADVOCATE WITH SHRI K.K. GAUTAM -
ADVOCATE FOR RESPONDENTS NO.2 TO 5)
This appeal coming on for admission this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
ORDER
Assailing the order dated 11.03.2022 passed by the learned Single Judge in
dismissing the Writ Petition No.20045 of 2019, the writ petitioner is in appeal.
2. The case of the writ petitioner is that he was appointed as Lecturer
(Diploma) for subject of (Computer Science & Engineering) in the respondent
No.3 department for a probation period of one year and after completion of
probation period, respondent No.3 confirmed the services of the writ petitioner
as Lecturer vide order dated 02.04.2011. The writ petitioner was discharging his
duties with utmost sincerity and honesty. The respondent No.3 vide order dated
06.09.2019, terminated his services as the management of the institution has
decided for closure of institution.
3. It is the case of the writ petitioner that the learned Single Judge has
dismissed the writ petition on the ground that the writ petition is not
maintainable inasmuch as the respondent-institution was not getting any grant in
aid from the government and is purely a private institution and the respondent-
institution does not fall within the meaning of Article 12 of the Constitution of
India. The petition was held to be not maintainable. The learned Writ Court vide
impugned order dated 11.03.2022 has dismissed the writ petition being not
maintainable by placing heavy reliance upon paragraph-68 of the judgment
passed by the Hon'ble Supreme Court in the case of St. Mary's Education
Society and another Vs. Rajendra Prasad Bhargava and others (Civil Appeal
Signature Not Verified
No.5789 of 2022, decided on 24.08.2022).
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 3/4/2023
1:21:57 PM
4. The case of the writ petitioner is that he is a Lecturer of the institution and
the judgment in the case of St. Mary's Education Society and another (supra)
deals with the case of an employee of the non-aided institution. There is a vast
difference between the teachers imparting education to the students in the
institution and the employees who are working as a non-teaching staff. His
services are being governed by the bylaws of the institution. The entire bylaws
provide for a mechanism to be followed for terminating the services of the writ
petitioner as well as the staff. The teachers are discharging a public function and
are duty bound to impart education to the students. Therefore, in terms of the
judgment passed by the Hon'ble Supreme Court in the case of Marwari Balika
Vidhyalaya Vs. Asha Shrivastava, (2020) 14 SCC 449, the petition under Article
226 of the Constitution of India is maintainable even against the private unaided
institutions.
5. Heard the learned counsels for the parties.
6. From the records, it is seen that the writ petition was dismissed on the
ground of maintainability considering the judgment passed by the Hon'ble
Supreme Court in the case of St. Mary's Education Society and another
(supra). The Hon'ble Supreme Court while dealing with the case of St. Mary's
Education Society and another (supra) has framed two issues for consideration
as under :-
"(a) Whether a writ petition under Article 226 of the Constitution of
I n d i a is maintainable against a private unaided minority
institution?
(b ) Whether a service dispute in the private realm involving a
private educational institution and its employee can be adjudicated
in a writ petition filed under Article 226 of the Constitution? In
other words, even if a body performing public duty is amenable to
writ jurisdiction, are all its decisions subject to judicial review or
only those decisions which have public element therein can be
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 3/4/2023
1:21:57 PM
judicially reviewed under the writ jurisdiction?"
7. The judgment passed in the case of Marwari Balika Vidhyalaya (supra) has
also been considered by the Hon'ble Supreme Court. Therefore, the legal status
of the Society was taken into consideration which is reflected from paragraph-
15 of the judgment which reads as under:-
"15. The appellant No.1 is a Society registered under the Madhya
Pradesh Society Registrikaran Adhiniyam, 1973. The Society runs
an all-girls school in Mhow, Indore, Madhya Pradesh, by the name
St.Mary's Higher Secondary School, which was founded by a group
of French Catholic Nuns in 1893. The school is a private unaided
minority educational institution, which enjoys the protection
guaranteed under Article 30(1) of the Constitution. There is
absolutely no Governmental control over the functioning and
administration of the school. The respondent no.1 herein was
employed in this school prior to his termination. The school is
presently affiliated to the Central Board of Secondary Education
(CBSE) and is thus governed by its Rules and Byelaws. Further, the
Society has its own Byelaws, namely, (1) the Service Conditions for
t h e Employee of St.Mary's School and (2) Service Rules for
Teaching and Non-Teaching Staff. The appellant No.1- Society and
the school are absolutely private institutions, without any aid or
control of the Government or any instrumentality of the
Government, and therefore, not a 'State' within the meaning of
Article 12 of the Constitution."
8. After considering the legal status of the Society running the institution, the
Hon'ble Supreme Court has categorically held that same does not fall within the
meaning of the 'State' provided under Article 12 of the Constitution of India and
after a detailed consideration of all the previous citations has specifically
answered the issue No.1 as under :-
"In view of the aforesaid discussion, we hold that the learned Single
Judge of the High Court was justified in taking the view that the
original writ application filed by the respondent No.1 herein under
Article 226 of the Constitution is not maintainable. The Appeal
Court could be said to have committed an error in taking a contrary
view."
9. From the aforesaid judgment, it is apparently clear that the writ petition
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 3/4/2023
1:21:57 PM
under Article 226 of Constitution of India by or against the unaided institution is
not maintainable. In view of the said fact, the learned writ court has not
committed any error in dismissing the writ petition being not maintainable in
view of the law laid down in the case of St. Mary's Education Society and
another (supra).
10. In view of the settled legal proposition, the writ petition has rightly been
dismissed by the learned Single Judge being not maintainable.
11. This writ appeal sans merit and is accordingly dismissed. No order as to
costs.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
taj
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 3/4/2023
1:21:57 PM
