Sudhir Rajput vs The State Of Madhya Pradesh
2024 Latest Caselaw 21567 MP

Madhya Pradesh High Court

Sudhir Rajput vs The State Of Madhya Pradesh on 8 August, 2024

                                                   1                       WP-21783-2024
               IN          THE   HIGH COURT OF MADHYA PRADESH
                                       AT JABALPUR
                                            BEFORE
                                 HON'BLE SHRI JUSTICE VIVEK JAIN
                                     ON THE 8 th OF AUGUST, 2024
                                   WRIT PETITION No. 21783 of 2024
                                         SUDHIR RAJPUT
                                             Versus
                           THE STATE OF MADHYA PRADESH AND OTHERS
          Appearance:
               Shri Raunak Yadav, learned counsel for the petitioner.
               Shri Lalit Joglekar, learned GA for the respondent/State.

                                                    ORDER

The present petition has been filed challenging the orders Annex.P/3 & Annex.P/4, whereby the petitioner has been terminated from service alleging misconduct and the appeal against the said order has been rejected.

The said orders Annex.P/3 and Annex.P/4 are passed by the authorities of respondent No.2-Society, which seems to be totally private society and there is no averments in the petition that the said society is receiving grant in aid from the State Government in any manner. The said society therefore,

looking to pleadings in the petition appears to be a totally private society having no trappings of a strong territory of State in terms of Article 12 of Constitution of India.

The aspect of maintainability of writ petition against such private education institutions has been considered by the Hon'ble Supreme Court recently in the case of St. Mary's Education Society v. Rajendra Prasad

Bhargava (2023) 4 SCC 498, wherein the Hon'ble Apex Court held as under:

2 WP-21783-2024

"61. In Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v.

Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S) 854] , this Court followed Ramesh Ahluwalia [Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715] referred to above.

62. We may say without any hesitation that Respondent 1 herein cannot press into service the dictum as laid down by this Court in Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S) 854] as the said case is distinguishable. The most important distinguishing feature of Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S) 854] 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 Respondent 1 herein.

63. In context with Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S) 854] , we remind ourselves of Bye-law 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 Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S) 854] 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.

64. In Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S) 854] , 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 of School (Primary Education) and, if any action is taken dehors such mandatory provisions, the same would not come within the realm of private element.

65. In Trigun Chand Thakur [Trigun Chand Thakur v. State of

Bihar, (2019) 7 SCC 513 : (2019) 2 SCC (L&S) 378] , the SINGH appellant therein was appointed as a Sanskrit teacher and a show- Signing time: 10-08-2024 6.05.48 PM 3 WP-21783-2024 cause notice was issued upon him on the ground that he was absent on the eve of Independence day and 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" within the meaning of Article 12 of the Constitution of India.

66. 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 to 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.

67. Our present judgment would remain incomplete if we fail to refer to the decision of this Court in Ramakrishna Mission v. Kago Kunya [Ramakrishna Mission v. Kago Kunya, (2019) 16 SCC 303] . In the said case this Court considered all its earlier judgments on the issue. The writ petition was not found maintainable against the Mission merely for the reason that it was found running a hospital, thus discharging public functions/public duty. This Court considered the issue in reference to the element of public function which should be akin to the work performed by the State in its sovereign capacity. This Court took the view that every public function/public duty would not make a writ petition to be maintainable against an "authority" or a "person" referred under Article 226 of the Constitution of India unless the functions are such which are akin to the functions of the State or are sovereign in nature.

75. We may sum up our final conclusions as under:

SINGH 75.1. An application under Article 226 of the Constitution is Signing time: 10-08-2024 6.05.48 PM 4 WP-21783-2024 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 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 SINGH school for the purpose of its administration or internal Signing time: 10-08-2024 6.05.48 PM 5 WP-21783-2024 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 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.

76. In view of the aforesaid discussion, we hold that the learned Single Judge [Rajendra Prasad Bhargava v. Union of India, 2017 SCC OnLine MP 2337] of the High Court was justified in taking the view that the original writ application filed by Respondent 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."

Accordingly, interference is declined in the present petition. The petitioner shall be at liberty to take recourse to any other remedy available to him under common law.

(VIVEK JAIN) JUDGE

RS