Orissa High Court
Pradeep Kumar Dhal vs M/S. K.P. Mishra on 26 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 3150 of 2020,
W.P.(C) No. 4075 of 2014,
W.P.(C) No. 22665 of 2015,
W.P.(C) No. 11862 of 2018,
W.P.(C) No. 12970 of 2018,
W.P.(C) No. 21522 of 2019,
W.P.(C) No. 6557 of 2021,
W.P.(C) No. 6969 of 2021,
W.P.(C) No. 10414 of 2021 and
W.P.(C) No. 16687 of 2021
[Applications under Articles 226 and 227 of the Constitution of
India]
---------------
AFR W.P.(C) No. 3150 of 2020
Pradeep Kumar Dhal ...... Petitioner
-Versus-
State of Odisha and others ....... Opp.Parties
W.P.(C) No. 4075 of 2014
Christ College and another ...... Petitioners
-Versus-
The Director, Higher Education, Odisha,
Bhubaneswar and another ....... Opp.Parties
W.P.(C) No. 22665 of 2015
Rabindranath Lenka ...... Petitioner
-Versus-
State of Odisha and others ....... Opp.Parties
W.P.(C) No. 11862 of 2018
Governing Body, Christ College ...... Petitioner
-Versus-
State of Odisha and others ....... Opp.Parties
Page 1 of 33
W.P.(C) No. 12970 of 2018
Dr. Smita Nayak ...... Petitioner
-Versus-
State of Odisha and others ....... Opp.Parties
W.P.(C) No. 21522 of 2019
Dr. Pradeep Kumar Dhal ...... Petitioner
-Versus-
State of Odisha and others ....... Opp.Parties
W.P.(C) No. 6557 of 2021
Itishree Swain ...... Petitioner
-Versus-
State of Odisha and others ....... Opp.Parties
W.P.(C) No. 6557 of 2021
Prangya Paramita Jethy ...... Petitioner
-Versus-
State of Odisha and others ....... Opp.Parties
W.P.(C) No. 10414 of 2021
Itishree Swain ...... Petitioner
-Versus-
State of Odisha and others ....... Opp.Parties
W.P.(C) No. 16687 of 2021
Karisma Mohapatra ...... Petitioner
-Versus-
State of Odisha and others ....... Opp.Parties
Advocate(s) appeared in these cases:-
__________________________________________________________
For Petitioner(s): M/s. K.K. Swain, S.C.D. Dash,
Page 2 of 33
P.K. Mohanty, P.K. Mohapatra,
K. Swain & J.R. Khuntia, Advocates
[In W.P.(C) No. 3150 of 2020]
Ms. S.P. Mishra, Sr. Advocate with
M/s. Soumya Mishra, B. Mohanty,
S.K. Sahoo & D. Priyanka, Advocates.
[In W.P.(C) No. 4075 of 2014]
M/s. S.K. Das, S.K. Mishra & P.K.
Behera, Mr. S. Pattnaik & N. Jena
Advocates
[ In W.P.(C) Nos. 22665 of 2015, W.P.(C)
No. 12970 of 2018, W.P.(C) No. 6557 of
2021, W.P.(C) No. 10414 of 2021 &
W.P.(C) No. 16687 of 2021]
M/s. S.K. Dash, S. Das, A.K. Hotta,
A Sahoo & S. Mohanty, Advocates
[ In W.P.(C) No. 11862 of 2018]
Mr. Bimbisar Dash, Advocate
[ In W.P.(C) No. 21522 of 2019]
M/s. K.P. Mishra, L.P. Dwibedi, S. Rath,
A. Mishra & K. Hussain, Advocates,
[In W.P.(C) No. 6969 of 2021]
For Opp. Parties: Mr. B.P. Tripathy,
Addl. Government Advocate.
M/s. S.K. Dash, A.K. Otta, S. Das,
A Sahoo, S. Mohanty, P. Das, Advocates
[For O.Ps.- Governing Body and Principal of
Christ College, Cuttack]
M/s. U.C. Pattnaik, S. Patnaik & M.R.
Sahu, Advocates
[ O.P. No.5 in W.P.(C) No.3150 of 2020]
M/s. S.K. Das, S.K. Mishra & P.K.
Behera, Advocates
[O.P. No.2 in W.P.(C) No. 4075 of 2014]
Mr. Bimbisar Dash, Advocates
[ O.P. No.4 in W.P.(C) No. 11862 of 2018]
Page 3 of 33
Ms. S.P. Mishra, Sr. Advocate with
M/s. Soumya Mishra, B. Mohanty,
E. Agrawal, S.K. Samantaray, Advocates
[O.P. No.3 in W.P.(C) No.22665 of 2015]
M/s. Pami Rath, J. Mohanty, S.
Gumansingh & P. Mohanty, Advocates
[O.P. No.4 in W.P.(C) No. 10414 of 2021]
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
26th April, 2023
SASHIKANTA MISHRA, J. Whether Christ College, Cuttack is a
minority educational institution within the meaning of
Section 2 of the Odisha Education Act, 1969 (in short the
"Act, 1969") is the preliminary question to be determined in
all these writ applications. The other question to be
determined is as to if these writ applications would be
maintainable regardless of the answer to the preliminary
question.
2. The petitioners in these writ applications (except
W.P.(C) No.4075 of 2014 and W.P.(C) No. 11862 of 201) are
Staff of Christ College and are aggrieved by action taken
against them by governing body of the College. Since the
preliminary question as above was raised, with consent of
the parties, the said question was taken up for
determination at the outset. Since this issue is common to
all these writ applications, they were heard together and
are being decided by this common judgment. To such
extent therefore, the facts of each of the cases are not
required to be gone into at this stage.
3. W.P.(C) No. 4075 of 2014 has been filed by the
Christ College challenging letters dated 13.11.2013 and
22.02.2014 issued by the Director, Higher Education,
Odisha in requesting the Management to revoke the order
of suspension of Sri Rabindranath Lenka (opposite party
No.2 and a teaching staff) and to dispose of his prayer
made in the representation dated 21.10.2013 and in
reminding the Management to ensure compliance of the
earlier request on threat of withdrawal of delegation of
financial power bestowed on the Principal. Be it noted that
as per resolution of the Governing Body dated 11.09.2013,
the Management had placed Sri Lenka on suspension with
immediate effect.
4. W.P.(C) No. 11862 of 2018 has been filed by the
Christ College with prayer to quash the letters dated
07.06.2018 and 06.07.2018 in relegating the order of
suspension passed against Dr. Pradeep Kumar Dhal
(opposite party No.4, a teaching staff) from the date of
expiry of one month in terms of second proviso to Rule
21(2) of the Odisha Education (Recruitment and
Conditions of Service of Teachers and Members of the Staff
of Aided Educational Institutions) Rules, 1974 and in
reminding the Management to comply with such order.
The stand taken by the Christ College in both
these writ applications basically is, it being a minority
managed institution, the provisions of the Orissa
Education Act, 1969 and Rules framed thereunder are not
applicable to it and therefore, the impugned
communications made by the Director Higher Education
are contrary to the provision under Article 30 of the
Constitution of India.
5. On the other hand, it has been argued on behalf
of all other petitioners (Staff of the College) that Christ
College, Cuttack is not a minority educational institution
but an aided educational institution within the meaning of
Section 3(b) of the Act, 1969 and therefore, all the relevant
rules framed under the Act, 1969 relating to conditions of
service of its employees are applicable to it.
6. Heard Mr. K.K. Swain and Mr. S.K. Das,
learned counsel for the petitioners; Mr. B.P. Tripathy,
learned Addl. Government Advocate for the State; Mr. S.K.
Dash and Mr. S.P. Mishra, learned Senior Counsel along
with Mr. S. Mishra, learned counsel for the Christ College;
and Ms. Pami Rath and Mr. U.C. Pattnaik, learned counsel
for the private opposite parties and Mr. B. Dash, learned
counsel for the petitioner in W.P.(C) No. 21522 of 2019 and
opposite party No.4 in W.P.(C) No. 11862 of 2018.
7. It has been urged on behalf of the petitioners
(staff of the college) that Christ College, Cuttack though
held to be a minority institution by a coordinate Bench of
this Court in the case of Governing Body of Stewart
Science College, Cuttack v. State of Orissa and
Governing Body of Christ College, Cuttack vs. State of
Orissa, reported in 2008 SCC OnLine Ori 2 :: AIR 2008 Ori
143, yet the said finding was diluted by the subsequent
judgment rendered by a Division Bench of this Court in the
case of Dr. Shyamal Ku. Saha and others vs. State of
Orissa and others [W.P.(C) No. 2207/2012, 29737/2011,
7579/2008 and 9406/2008 disposed of on 26th June,
2012]. Therefore, according to the petitioners, the question
of status of the institution is open for determination by this
Court. On the other hand, it has been argued on behalf of
the Christ College that the judgment of the Division Bench
was rendered specifically in respect of Stewart College,
Cuttack and the finding of the Single Judge relating to
Christ College was reaffirmed by the Division Bench as also
by order dated 11.09.2007 of the National Commission for
Minority Educational Institutions.
8. It is therefore, apposite to refer to the
judgments relied upon by the parties as mentioned in the
previous paragraphs.
9. In the case of Governing Body of Stewart
Science College (supra), the legality of the notifications
No.IV.HE/GB-02/2004.21066/HE and No.IV.HE/GB-
02/2004.21016/HE dated 10th June, 2004 issued by the
State Government dissolving the Governing Body of the
Stewart Science College, Cuttack as well as Governing
Body of Christ College, Cuttack respectively were under
challenge. Both the writ applications were heard together
and disposed of by a common judgment passed by the
Single Judge. After analyzing the facts and the relevant
provisions of law as also some decisions of the Apex Court
relating to Article -30(1) of the Constitution, the Single
Judge held as follows:
"10. The main ground on which the State resists
the rights of the petitioners to manage the
Stewart Science College, Cuttack is that the said
College was established in the year 1944 by the
Baptist Church Trust Association and its
management was handed over to the Diocese of
Cuttack, a creature of the Church of North India.
Thus according to the opposite parties, the
Diocese having not established this College has
no right to manage the same. But then according
to learned counsel for the petitioners, the Baptist
Church Trust Association is the Apex Body of
which Diocese of Cuttack is a branch. Be that as
it may, the dispute as to whether the Stewart
Science College and Christ College are Minority
Institutions or not is no longer in dispute, as
would be evident from the letter bearing number
4010/83-16179 dated 18-3-1983 (Annexure-11)
issued by the Director of Public Instruction
(Higher Education), Orissa, as it then was,
addressed to the Secretary to Government of
Orissa, Education Department wherein it was
clearly mentioned that the Stewart Science
College, Cuttack and Christ College, Cuttack
being Minority Institutions are not governed
under the Orissa Education Act, 1969 and the
Rules framed thereunder as those two
Institutions had been established and were
being administered by Christian Minority. In
spite of the said decision, it appears, the dispute
as to whether the aforesaid two Colleges were
Minority Institutions or not cropped up now and
then, and the same was referred to the National
Commission for Minority Educational
Institutions, Government of India. After receiving
the said reference notices were issued by the
National Commission and after due
consideration of the matter, the National
Commission, headed by Justice M.S.A. Siddiqui
as its Chairman with B.S. Ramoowalia as
member on 11-9-2007 ordered as follows:--
"It is stated in Col. 9(d) of the petition that the
petitioner-Institution has been recognised by
the State Government as a Minority
Educational Institution. Reliance has been
placed on order dated 18-3-1983 issued by
the Directorate of Public Instruction (H.E.),
Orissa. Since the State Government has
already recognised the petitioner-Institution as
a Minority Educational Institution, there is no
need to issue another certificate by this
Commission in this regard. The petition is
disposed of accordingly. Copy of the order be
sent to the parties."
On such finding, the impugned notifications in
so far as they relate to the petitioner-Colleges were quashed
and the State Government was directed not to interfere
with the management/administration of the Colleges.
10. In so far as the judgment of the Division Bench
in the case of Dr. Shyamal Ku. Saha (supra) is
concerned, it is to be noted that the same was a common
judgment passed in respect of four writ applications filed
by the petitioners therein to challenge the Resolutions of
Minutes of Eighteenth Ordinary Meeting of Diocesan
Council dated 9th -11th July, 2007 and the Minutes of the
Governing Body of the College dated 06.10.2007 providing
the modalities for appointment of Principal of the Stewart
Science College. Further, the appointment/proposed
appointment of the private opposite parties as Principal of
the College was also under challenge. Since the question of
maintainability was raised on the ground that Stewart
Science College, Cuttack was a minority educational
institution, the same was taken up as a preliminary issue
and the common judgment was rendered. In so far as the
decision of the Hon'ble Single Judge in Governing Body of
Stewart Science College (supra) is concerned, the
Division Bench held as follows :
"33. It is apparent from the above that the very
same question of the Diocese to have not
established the College was raised before the
learned Single Judge. However, learned Single
Judge arrived at the decision basing solely on the
letter of the Director, of Public Instruction (Higher
Education), Orissa bearing No.4010/83-16179
dated 18.3.1983 and the order of the Commission
dated 11.9.2007. So far as order of the
Commission is concerned, Annexure-9 to W.P.(C)
No.2207 of 2012 fortifies the contention of the
petitioners that order of the Commission related to
Christ College, Cuttack only. Opposite parties have
not placed any material to indicate that the order of
the Commission dated 11.9.2007 related to
Stewart Science College, Cuttack. So far as the
letter dated 18.3.1983 of Director of Public
Instruction (Higher Education), Orissa is concerned,
the first para of the letter addressed to the
Secretary to Government of Orissa in the Education
Department reads:
"I am directed to say that the Stewart Science
College, Cuttack and Christ College, Cuttack being
Minority Institutions are not governed and or Orissa
Education Act, 1969 and rules framed there under
as those the Institutions have been established and
being administered by the Christian Minority. They
are making the appointments of Lecturers by their
own selection without taking candidates from the
Adhoc merit panel prepared by this Directorate as
well as from the Selection Board on the grounds that
they are Minority Institutions. Although these two
Institutions are being managed and administered by
the Minority Community, the Staff of the Institutions
are receiving direct payment since the date of its
introduction in the aided Colleges. In this connection
it may be mentioned here that previously
Government in their letter No.22369/EYS, dated
27.08.79 had decided that the payment of salaries
to the Staff of these two Institutions through direct
payment system should be stopped, a copy of the
order based on this decision was communicated to
both the Institutions in this Directorate Memo
No.32484 dtd.25.07.79. But subsequently
Government in their No.27085/EYS, dated 03.08.79
have kept the said orders in abeyance and decided
that pending finalization of the matter, the existing
arrangement for making payment of salaries to the
staff directly may continue Govt. order in the matter
is awaited."
In the last paragraph request has been made that
Government order in the matter may be
communicated at an early date. It is also
worthwhile to observe that State Government have
taken conflicting and contradictory stands with
regard to the status of the Stewart Science College
in different Writ Petitions. In W.P.(C) No.2207 of
2012 stand of the Government is that Stewart
Science College is a Minority Educational
Institution entitled to protection under Article
30. However, in W.P.(C) No.7762 of 2004 stand of
the Government was that the present Management
or Governing Body having not established the
College cannot claim the protection of
administration of the College as envisaged
under Article 30 of the Constitution. In fact, learned
Single Judge has categorically observed in the
decision extracted above that the main ground on
which the State resisted the rights of the
Management was that the said College was
established by BCTA and its management was
handed over to the Diocese and as such the
Diocese having not established the College has no
rights to manage the institution. Also, in the
counter affidavit filed on behalf of Director, Higher
Education in W.P.(C) No.7579 of 2008 it has been
pleaded that the impugned resolution passed by
the Management in contravention of Government
Resolution dated 9.3.1999 issued under the Act
prescribing that Principals of Non- Government
Aided Colleges may be appointed from among
Readers/Lecturers (Selection Grade) is to be
ignored as the same is illegal and the Management
is estopped from deviation from the prescribed Rule
framed by the Government since the College is
receiving grant-in-aid on direct payment scheme.
Vacillating stands of the State Government make
the situation worse. Thus, learned Single Judge
has not only placed reliance on the order of the
Commission which did not relate to Stewart
Science College, but also has not taken note of
conflicting and contradictory stands of the State
Government. Therefore, judgment passed by the
learned Single Judge in Governing Body of Stewart
Science College, Cuttack and another (W.P.(C)
No.7762 of 2004) (supra) cannot be held to have
finally determined the status of Stewart Science
College as a Minority Educational Institution.
Instead of entertaining the writ application, the
learned Single Judge ought to have directed to get
the dispute adjudicated by competent fact finding
authorities in accordance with the mandate of
Hon'ble Supreme Court in Manager, St.Thomas
U.P.School Kerala and another vs. Commissioner &
Secy. to General Education Deptt. and others
(supra)."
Nothing further has been stated in so far as the Christ
College is concerned. Nevertheless, reference having been
made to the order of the National Commission as being
relatable to Christ College only, it would be reasonable to
hold that the Division Bench did not deem it proper to
render any specific finding as regards the status of the
Christ College. Moreover, there is nothing in the said
judgment which would lead to the conclusion that the
order of the Single Judge in so far as it relates to Christ
College was diluted in any manner whatsoever. On the
other hand, the writ petitions were disposed of by directing
the Management of Stewart Science College, Cuttack to
obtain necessary declaration from the National
Commission regarding minority status within a period of
two months. In view of the above discussion, it would
rather be reasonable to hold that the finding of the Single
Judge in so far it relates to Christ College stood impliedly
affirmed by the Division Bench.
11. As was noticed by the Division Bench in Dr.
Shyamal Ku. Saha (supra), the judgment of the Single
Judge in deciding the minority status of both Stewart
Science College, Cuttack and Christ College was based on
the letter dated 18.03.1983 issued by the Director of Public
Instructions (Higher Education), Odisha mentioning that
the said Colleges being minority institutions are not
governed under the Act, 1969 and Rules framed
thereunder as they had been established and were being
administered by Christian minority. There is a subtle but
clear difference between Stewart Science College, Cuttack
and Christ College, Cuttack. This is being said because till
the time of rendering of the judgment by the Single Judge,
Stewart Science College, Cuttack had not obtained any
declaration from the National Commission. On the other
hand, the Single Judge took note of the fact that there was
an order by the National Commission (11.09.2007) in
respect of Christ College. The Division Bench in Dr.
Shyamal Ku. Saha (supra), therefore, directed the
Management of Stewart Science College, Cuttack to obtain
necessary declaration. Be it noted that Christ College was
not a party to the cases before the Division Bench and
therefore, it must be held that the order passed by the
Single Judge, in so far as it relates to Christ College holds
the field even till date. Such being the case, ordinarily no
further determination would be required but as has been
stated hereinbefore, the order of the Single Judge was
based on letter dated 18.03.1983 and order dated
11.09.2007 of the National Commission. In the present
batch of writ applications, several other points have been
raised which were not agitated before the Single Judge.
This Court therefore, deems it proper to consider all the
other contentions raised before it relating to the status of
Christ College, Cuttack.
12. Without referring to the contentions raised by
learned counsel individually it would be proper to
summarise the arguments as follows:
It has been argued that after coming into force
of the National Commission for Minority Educational
Institution Act, 2004 it was necessary for Christ College to
obtain a declaration from the Commission under Section
11(f) of the Act as regards its status. As regards the order
dated 11.09.2007 already passed by the National
Commission, it is contended that the same was passed
under misconception being based only on the order dated
18.03.1983 of the Director of Public Instructions and
cannot be treated as a declaration as such. Per contra, it
has been argued on behalf of the Christ College that the
Commission has itself held that in view of the recognition
by the Government of the minority status of Christ College
no declaration is necessary under Section 11(f) and
therefore, the matter must be treated as closed. This is
more so as the order of the Commission was never
challenged and therefore, has attained finality.
13. This Court finds that the status of Christ
College as a minority educational institution was
determined long back and recognized by the National
Commission in the year 2007. The matter must therefore,
be treated as being finally set at rest. Since the competent
forum has already given its finding with regard to the
status, which has been duly noted by a coordinate Bench
of this Court, no further determination is necessary in this
regard. Moreover, neither the order of the Commission or of
the Director of Public Instruction (Higher Education) (order
dtd. 18.03.1983) has been challenged nor is presently
under challenge in these writ applications.
14. It has been further argued on behalf of the
petitioners (staff of the college) that notwithstanding the
judgment of the Single Judge of this Court as well as the
order passed by the National Commission, the Management
of the Christ College by its own conduct has proved that it
is not a minority institution. In this regard it has been
argued that the Management has always subjected itself to
the control of the State Government as would be evident
from the orders of approval issued by the prescribed
authority under Section 7 of the Odisha Education Act and
Odisha (Establishment, Recognition and Management of
Private College) Rules, 1991 in respect of its governing
body. Moreover, it has applied to the prescribed authority
for grant of permission and recognition for opening new
streams and subjects under Section 5 and 6 of the Act,
1969. The staffs of the College have received grant-in-aid
under section 7-C of the Act, 1969 and also UGC scale of
pay for the teachers. All these go to show that the
Management of the College does not consider itself as a
minority educational institution.
15. What has been essentially argued on behalf of
the petitioners (Staff of the College) in the present case is,
by seeking approval of the constitution of the governing
body from the prescribed authority under section 7-C of
the Act, 1969 as also by seeking permission/recognition to
open new streams/subjects, the Management of the
institution has waived the protection afforded to it under
Section-2 of the Act, 1969.
On the other hand, it has been argued on
behalf of the College that such acts on the part of the
Management cannot nullify its status as a minority
institution which is guaranteed under the Constitution of
India.
16. Similar question arose for consideration before
a Division Bench of this Court in the case of St. Catherine
Girls' High School vs. State of Orissa and Ors., reported
in 2002 (Supp.) OLR 452, wherein it was held as follows:
"14. Regarding the approval sought for from the
Inspector of Schools to the appointments made by
the Secretary of the Schools and to grant of higher
pay scales to the staff, it has been submitted that it
was necessary for the purpose of release of grant
as the School was a fully aided School. Although
the grant of approval of appointment of staff in a
minority institution is outside the purview of the
State control but before release of aid the
concerned authorities are to be satisfied that the
appointments are within the sanctioned strength
and that the appointees possess the required
minimum qualification. Such approvals do not
signify that the School is not a minority institution.
15. Allegation of direct payment of salaries to the
staff are release of salary in favour of the
Headmistress appears to be post-dispute
development. Even in 1991 (Annexure-9) grant for
payment of salaries to the staff was released in
favour of the Secretary of the School.
16. Moreover, those acts like direct payment of
salaries, deduction of G.P.F. amount, inclusion of
the School in the list of general Schools are all
unilateral acts of the State Government and those
never prejudicially affected the right of
management of the minority School. These
unilateral acts which did not in reality interfere
with the constitutional freedom of management are
not all relevant for the purpose of determining the
real character of the School.
17. Article 30 of the Constitution finds place in
Part-III as one of the fundamental rights of the
minorities based on religion or language. It is well-
known and well settled that there is no estoppel
against a constitutional provision and more
particularly against a fundamental right enshrined
in the Constitution. A private statutory right can be
waived under certain circumstances, but a
constitutional guarantee of a fundamental right
given to a particular Section of the community
cannot be waived. So even assuming and/or
accepting that the management of the School
initially was following the provisions of the Orissa
Education Code or the Rules relating to
management of private educational institutions, the
same cannot take away the minority character
and/or status of an institution, if it is proved that
the same has been established and is being
administered by the minorities based on religion or
language. In Olga Tellis and Ors. v. Bombay
Municipal Corporation and Ors., AIR 1986 SC 180,
a Constitution Bench of the Supreme Court has
pronounced :
"...There can be no estoppel against the
constitution, the Constitution is not only the
paramount law of the land but, it is the source
and sustenance of all laws. Its provisions are
conceived in public interest and are intended to
serve a public purpose. The doctrine of estoppel
is based on the principle that consistency in
word and action imparts certainty and honesty
to human affairs. If a person makes a
representation to another, on the faith of which
the latter acts to his prejudice, the former cannot
resile from the representation made by him. He
must make it good. This principle can have no
application to representations made regarding
the assertion or enforcement of fundamental
rights. For example, the concession made by a
person that he does not possess and would not
exercise his right to free speech and expression
or the right to move freely throughout the territory
of India cannot deprive him of those
constitutional rights, any more than a concession
that a person has no right of personal liberty can
justify his detention contrary to the terms
of Article 22 of the Constitution. Fundamental
rights are undoubtedly conferred by the
Constitution upon individuals which have to be
asserted and enforced by them, if those rights
are violated. But the high purpose which the
Constitution seeks to achieve by conferment of
fundamental rights is not only to benefit
individuals but to secure the larger interests of
the community. The preamble of the Constitution
says that India is a Democratic Republic. It is in
order to fulfil the promise of the Preamble that
fundamental rights are conferred by the
Constitution, some on citizens like those
guaranteed by Articles 15, 16, 19, 21 and 29
and, some on citizens and non-citizens alike, like
those guaranteed by Articles 14, 21, 22 and 25
of the Constitution; No individual can barter
away the freedoms conferred upon him by the
Constitution. A concession made by him in a
proceeding, whether under a mistake of law or
otherwise, that he does not possess or will not
enforce any particular fundamental right, cannot
create an estoppel against him in that or any
subsequent proceeding. Such a concession, if
enforced, would defeat the purpose of the
Constitution. Were the argument of estoppel
valid, an all powerful State could easily tempt an
individual to forge his precious personal
freedoms on promise of transitory, immediate
benefits.
**** **** ****
The plea of estoppel is closely connected with the
plea of waiver, the object of both being to ensure
bona fides in day-to-day transactions. In
Basheshwar Nath v. Commnr. of Income-Tax,
Delhi (1959) Supp. (1) SCR 528; AIR 1959 SC
149; a Constitution Bench of this Court
considered the question whether the
fundamental rights conferred by the Constitution
can be waived. Two members of the Bench (Das
C.J. and Kapoor, J.) held that there can be no
waiver of the fundamental right founded
on Article 14 of the Constitution. Two others (N.H.
Bhagwati and Subba Rao, JJ.) held that not only
could there by no waiver of the right conferred
by Article 14, but there could be no waiver of any
other fundamental right guaranteed by Part III of
the Constitution. The Constitution makes no
distinction, according to the learned Judges,
between fundamental rights enacted for the
benefit of an individual and those enacted in
public interest or on grounds of public policy."
In re The Kerala Education Bill, AIR 1958 SC 956,
a seven-Judge Bench of the Supreme Court has
said that "there can be no loss of fundamental
rights merely on the ground of non -exercise of it."
The similar view has been expressed by the
Supreme Court in the Ahmedabad St. Xaviers
College Society and Anr. etc. v. State of Gujarat
and Anr., AIR 1974 SC 1389 and in Gandhi Faiz-e-
am College, Shahjahanpur v. University of Agra
and Ors., AIR 1975 SC 1821.
18. Thus it is wholly irrelevant whether at the
initial stages the management of the School was
voluntarily complying with some provisions of the
Education Code or the Rules framed by the State
Government and sending the constitution and
reconstitution of the Managing Committee for
approval of the appropriate authorities. Besides, a
minority institution may on its own follow the
principle or policy contained in any Statute, or
Rules so long as the same does not clash with its
right of freedom of management, Voluntary
submission to certain general rules, regulations or
restrictions is totally different from the state's
insistence on compliance with the provisions of the
Statute, Rules and Regulations interfering with the
freedom of management guaranteed under Article
30 of the Constitution. So constitution or
reconstitution of the Managing Committee on the
pattern laid down in the Education Code or any
Rule and sending those for approval cannot affect
the minority status of the School if it is otherwise
found to be an institution established by the
minorities within the meaning of Article 30 of the
Constitution. Direct payment of salaries, to the
teachers deduction of P.F amount etc. are all
unilateral acts of the State Government and those
are not at all relevant for the purpose of
determination of the real character of the School.
17. The principle that emerges from the cited
judgment is, there can be no estoppel against the
fundamental rights guaranteed under Part-III of the
Constitution. So merely because the Management has in
the past approached the State Government seeking
approval, permission etc., such action would not operate to
nullify its status as a minority educational institution
protected under Article 30(1) of Constitution of India. As
has been emphasized in the judgment (supra), the
constitutional protection of a fundamental right exists
forever and cannot be diluted/nullified/ taken away by any
act or conduct of any party.
18. It would be proper at this stage to refer to
Article 30 of the Constitution of India, which runs as
follows:
"30. Right of minorities to establish and
administer educational institutions
(1) All minorities, whether based on religion or
language, shall have the right to establish and
administer educational institutions of their choice
(1A) In making any law providing for the
compulsory acquisition of any property of an
educational institution established and
administered by a minority, referred to in clause ( 1
), the State shall ensure that the amount fixed by or
determined under such law for the acquisition of
such property is such as would not restrict or
abrogate the right guaranteed under that clause
(2) The state shall not, in granting aid to
educational institutions, discriminate against any
educational institution on the ground that it is
under the management of a minority, whether
based on religion or language"
19. In T.M.A. Pai Foundation vs. State of
Karnataka, reported in AIR 2003 SC 355, an 11 Judge
Bench of the Supreme Court recognized the inviolable
rights of the minorities to establish and administer
educational institutions in detail. It was observed as under:
"149. Although the right to administer includes
within it a right to grant admission to students of
their choice under Article 30(1), when such a
minority institution is granted the facility of
receiving grant-in-aid, Article 29(2) would apply,
and necessarily, therefore, one of the rights of
administration of the minorities would be eroded to
some extent. Article 30(2) is an injunction against
the State not to discriminate against the minority
educational institution and prevent it from receiving
aid on the ground that the institution is under the
management of a minority. While, therefore, a
minority educational institution receiving grant-in-
aid would not be completely outside the discipline
of Article 29(2) of the Constitution, by no stretch of
imagination can the rights guaranteed under
Article 30(1) be annihilated. It is in this context that
some interplay between Article 29(2) and Article
30(1) is required. As observed quite aptly in St.
Stephen's case [(1992) 1 SCC 558] (at SCC p. 608,
para 85) "the fact that Article 29(2) applies to
minorities as well as non-minorities does not mean
that it was intended to nullify the special right
guaranteed to minorities in Article 30(1)". The word
"only" used in Article 29(2) is of considerable
significance and has been used for some avowed
purpose. Denying admission to non-minorities for
the purpose of accommodating minority students to
a reasonable extent will not be only on grounds of
religion etc., but is primarily meant to preserve the
minority character of the institution and to
effectuate the guarantee under Article 30(1). The
best possible way is to hold that as long as the
minority educational institution permits admission
of citizens belonging to the non-minority class to a
reasonable extent based upon merit, it will not be
an infraction of Article 29(2), even though the
institution admits students of the minority group of
its own choice for whom the institution was meant.
What would be a reasonable extent would depend
upon variable factors, and it may not be advisable
to fix any specific percentage. The situation would
vary according to the type of institution and the
nature of education that is being imparted in the
institution. Usually, at the school level, although it
may be possible to fill up all the seats with
students of the minority group, at the higher level,
either in colleges or in technical institutions, it may
not be possible to fill up all the seats with the
students of the minority group. However, even if it
is possible to fill up all the seats with students of
the minority group, the moment the institution is
granted aid, the institution will have to admit
students of the non-minority group to a reasonable
extent, whereby the character of the institution is
not annihilated, and at the same time, the rights of
the citizen engrafted under Article 29(2) are not
subverted. It is for this reason that a variable
percentage of admission of minority students
depending on the type of institution and education
is desirable, and indeed, necessary, to promote the
constitutional guarantees enshrined in both Article
29(2) and Article 30."
Thus, the contentions advanced by the
petitioner (staff of the College) are untenable.
20. It would now be apt to refer to the arguments
made by learned State Counsel. According to him, the
Christ College is a self contained institution. It appoints its
own employees. There are no transfers of employees to and
from the said Colleges. The governing body enjoys absolute
control over the management and the government has
merely recognized the existing status of the Institution as a
minority institution. In its letter dated 21.09.2022 issued
by the Government in Higher Education Department
addressed to the Principal of Christ College, Cuttack the
above fact has been clarified. A copy of such letter was
furnished by learned State Counsel along with his written
note of submissions. For immediate reference, letter dated
21.09.2022 is extracted hereinbelow:
"GOVERNMENT OF ODISHA
HIGHER EDUCATION DEPARTMENT
No. HE-NCNE-MISC-0007-2021 40173 //H.E., Dt.21.09.2023
From
Sri Srinabash Mishra
Senior Administrative Officer
To
The Principal,
Christ College, Cuttack,
Dist.- Cuttack
Sir,
I am directed to invite a reference to your
letter No. 691 dt.10.05.2022 on the subject noted
above and to say that the Odisha Education
(Establishment, Recognition and Management of
Private Colleges) Amendment Rules, 2020 is not
applicable to the minority Educational Institutions.
Hence this Department letter No. 18288/HE dt.
05.05.2022 issued to all Non Govt. Aided Degree
Colleges for submission of proposals for re-
constitution of Governing Body has no relevance in
respect of your college being a minority Institution.
This is for your Information
Yours faithfully,
Sd/-21/9/22
Sr. Administrative Officer."
21. Thus, from a conspectus of the analysis of
facts, law and the discussion thereon made in the
preceding paragraphs, the irresistible conclusion available
to be drawn is, Christ College, Cuttack is a minority
educational institution within the meaning of Section-2 of
the Odisha Education Act, 1969.
22. This takes the Court to the next question -
whether the writ applications would be maintainable
despite the aforementioned finding.
23. It has been argued on behalf of the petitioners
that even if it is held that the Christ College is a minority
educational institution, it is still amenable to the writ
jurisdiction of this Court under Articles 226 and 227 of the
Constitution since by providing education it is performing a
public duty. On the other hand, it has been argued on
behalf of the Christ College that even if it is held that the
institution is performing a public duty, the lis before this
Court involves individual and private grievances of the
petitioners against the Management, which cannot be gone
into in the writ applications.
24. This Court finds that the very same question
as posed above came up for consideration before the Apex
Court recently in the case of St. Mary's Education
Society and Another vs. Rajendra Prasad Bharagava
and others, reported in 2022 SCC OnLine SC 1091. In the
said case the following issues were framed for
determination.
(a) Whether a writ petition under Article 226
of the Constitution of India 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 judicially reviewed
under the writ jurisdiction?
Analyzing the law on the subject, the Apex
Court held that the School discharges a public duty by
imparting education, which is a fundamental right of the
citizen. However, judicial review of the action challenged by
a party can be had by resort to the writ jurisdiction only if
there is a public law element and not to enforce a contract
of personal service. It was further clarified that a contract
of personnel service includes all matters relating to the
service of employee - confirmation, suspension, transfer
and termination etc. It was therefore held that a writ of
mandamus can be issued against a private body, which is
not a 'State' within the meaning of Article 12 of the
Constitution of India, but there must be a public law
element involved and it cannot be exercised to enforce
purely private contracts entered into by the parties. It was
also held that in case of retirement and in case of
termination, no public law element is involved. It also
referred to the decision of the Apex Court in the case of
Trigun Chand Thakur.
"45. In the case of Trigun Chand Thakur v. State of
Bihar, reported in (2019) 7 SCC 513, this Court upheld
the view of a Division Bench of the Patna High Court
which held that a teacher of privately managed
school, even though financially aided by the State
Government or the Board, cannot maintain a writ
petition against an order of termination from service
passed by the Management."
25. Such being the legal position, it would be
proper to refer to the grievances of the petitioners in this
batch of writ applications. This Court finds that the prayer
of the petitioner in W.P.(C) No. 22665 of 2015 is to set
aside the order of suspension framing charges against him
on 09.12.2013, second show cause notice and the final
order of dismissal passed by the governing body against
him.
26. The petitioner in W.P.(C) No. 12970 of 2018
has prayed for direction to regularize his service with
release of arrear salary.
27. The prayer of the petitioner in W.P.(C) No.
6557 of 2021 is to direct the governing body not to separate
the Department of IT and Computer Science and to place
her against 1st post of Lecturer in Computer Science of the
Degree Wing of Christ College, Cuttack with all
consequential service and financial benefits.
28. The prayer of the petitioner in W.P.(C)
No.10414 of 2021 and W.P.(C) No. 16687 of 2021 is
identical to the prayer of the petitioner in W.P.(C) No.6557
of 2021.
29. The prayer of the petitioner in W.P.(C) No.
6969 of 2021 is to post her in Department of Computer
Science taking into consideration her seniority,
qualification and experience and to quash the resolution of
the Governing Body dated 06.02.2021.
30. The petitioner in W.P.(C) No. 21522 of 2019 is
to quash the decision of the governing body treating the
period of suspension as such.
31. The prayer of the petitioner in W.P.(C) No.
3150 of 2020 is to quash the order of suspension,
disciplinary proceeding against him and for his
reinstatement.
32. This Court thus, finds that the grievances of
the petitioners (Staff of the College) are relatable to contract
of personal service and no public law element is involved
therein so that the same could be adjudicated upon by this
Court exercising writ jurisdiction under Articles 226 and
227 of the Constitution of India.
33. For the foregoing reasons therefore, this Court
holds that Christ College, Cuttack is a minority educational
institution within the meaning of Section-2 of the Odisha
Education Act, 1969 and further that the grievances of the
petitioners (staff of the college) are not amenable to the writ
jurisdiction of this Court under Articles 226 and 227 of the
Constitution of India.
34. In view of the findings of this Court as above, it
is clear that the impugned communications under
Annexures-5 and 12 in W.P.(C) No. 4075 of 2014 and
Annexures-7 and 9 in W.P.(C) No. 11862 of 2018 cannot be
sustained in the eye of law as the Director has no
jurisdiction or authority to issue the same in respect of the
Christ College, Cuttack, which is a Minority Educational
Institution. As such, the writ petitions being W.P.(C) No.
4075 of 2014 and W.P.(C) No. 11862 of 2018 filed by Christ
College, Cuttack are allowed. The impugned
communications under Annexures-5 and 12 in W.P.(C) No.
4075 of 2014 and Annexures-7 and 9 in W.P.(C) No. 11862
of 2018 are hereby quashed.
35. All the other writ petitions filed by the Staff of
the College are hereby, dismissed. There shall be no order
as to costs.
..................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 26th April, 2023/ A.K. Rana, P.A.
