Dr. J.J.B. Vijay Vardhan vs Matrusri Education Society,
2023 Latest Caselaw 1362 Tel

          HONOURABLE SRI JUSTICE E.V.VENUGOPAL

                WRIT PETITION No.41482 of 2018

ORDER:

1 Heard Sri Vedula Srinivas, learned senior counsel for the

petitioner and Smt. Preethi Pawar learned counsel representing Sri

V.Hari Haran, learned senior counsel for respondent Nos.1 and 2

and the learned Government Pleader for Education appearing for

respondent No.3.

2 Petitioner filed the present writ petition challenging the action

of the respondent Nos.1 and 2 in discharging the petitioner from

service through office order dated 24.10.2017 without conducting

any enquiry and without obtaining prior approval of the third

respondent under Section 79 of the A.P. Education Act, 1982 as

illegal and arbitrary and consequently to direct the respondent

Nos.1 and 2 to continue the petitioner in service as Assistant

Professor of English with all consequential benefits.

3 The learned counsel for the petitioner submits that the

petitioner did M.A.(English) and M.Phil and Ph.D in English from

Osmania University. The first respondent is an educational society

and the second respondent is an Engineering college run by the first

respondent.

4 It is submitted that the petitioner was appointed as an

Assistant Professor of English in the second respondent college vide

proceedings dated 29.08.2012 and the petitioner joined in the said

post on 06.10.2012. While he was working as such, he was offered

the post of Associate Professor of English by the University of Adis

Ababa, Ethiopia for a period of two years in 2017. Therefore, the

petitioner requested the second respondent to grant lien for two

years from 14.10.2017 to 14.10.2019, vide his letter dated

06.10.2017. His application was forwarded and recommended by

the Head of the Department of Science & Humanities on 09.10.2017

and also by the in-charge of the Department of English. Both the

HoDs as well as the Principal of the college have orally permitted

him to proceed to Ethiopia by granting a lien of six months. The

petitioner proceeded to Adis Ababa on 23.10.2017 and worked in

the University of Adis Ababa in the Department of English for six

months in the first term and thereafter for two more months. The

petitioner resigned to that job in June, 2018 and returned to India

and reported to duty before the second respondent. But the

petitioner was not permitted to join informing that the services of

the petitioner in the second respondent college came to end as soon

as he went to Adis Ababa and hence the petitioner is no more in the

employment of the second respondent.

5 The case of the petitioner is that he was not served with any

notice prior to the alleged cessation of the petitioner's employment

nor any letter terminating his services. The petitioner came to know

that the second respondent issued an office order dated 24.10.2017,

addressed to the petitioner, stating that he proceeded to Adis Ababa

though his request for lien was not accepted and the same caused

serious dislocation in work schedule in the Department. The

petitioner was discharged from service with immediate effect by

paying one month notice pay. Petitioner submits that he has

received neither the letter nor the notice pay.

6 The contention of the learned counsel for the petitioner is that

the first and second respondents cannot terminate the service of the

petitioner without obtaining prior approval of the third respondent

and any termination without the prior approval of the third

respondent is null and void and the employee concerned continues

in employment. Moreover, the second respondent has been showing

the name of the petitioner in the faculty list as on 27.04.2018 in the

information submitted to the AICTE in connection with National

Board of Accreditation (NBA).

7 Learned counsel for respondent Nos.1 and 2, by relying on the

counter affidavit, primarily submitted that the writ petition is not

maintainable since the petitioner filed the present writ petition

without availing the alternative remedy of appeal provided under the

A.P. Education Act, 1982.

8 He further submitted that the writ petition against the

respondent society, which is a private unaided and self financed

Educational Institution, is not maintainable. The second respondent

is owned and managed by the first respondent, which is a society,

cannot be treated as State within the meaning of Article 12 of the

Constitution of India. The learned counsel relied on a decision of

this Court in A.Mohan Vs. State of Telangana (W.P.No.23589 of

2017 dated 31.07.2017).

9 The learned counsel further submitted that grant of lien is

solely at the discretion of Executive Committee of the first

respondent. As per Rules, fundamentally, one has to hold a post

appointed on regular basis but should not be on probation. Only a

regular employee who acquired lien on a post can retain the lien on

that post but not otherwise. The petitioner is holding a post of

Adhoc Assistant Professor on probation. Hence, he is not entitled for

grant of lien. He further submitted that the offer letter produced by

the petitioner was anti-dated i.e. 16.08.2007 which has absolutely

no relevance to his claim for lien application. The petitioner acted

against the academic schedule of the University and voluntarily

abandoned the service also in violation of Clause 5 (b) of the service

terms, which says that he shall devote his whole time and attention

to the interest of the organization and will not engage himself in any

other work paid or in honorary capacity.

10 The learned counsel further submitted that the second

respondent was not inclined to grant the lien in view of the concern

for the students as the semester was in progress and the same was

informed to the petitioner through the Departmental Head on

14.10.2017. But by that time the petitioner left abroad and hence

he was not available to conduct any enquiry. Therefore, the

respondent discharged the petitioner from service vide letter dated

24.10.2017 because holding of an enquiry under Section 79 of the

Education Act would be an empty formality.

11 He further submitted that since the petitioner's employment

was purely on adhoc basis, it will not confer any right or entitlement

for claiming continuation in the college.

12 As seen from the appointment order dated 29.08.2022, the

appointment of the petitioner itself is on probation. Clause No.2

which deals with 'Probation' reads as under:

2. Probation: From the date of joining, you will be on probation for an initial period of Two (2) years, which may be extended further at the discretion of the Management. On successful completion of the aforesaid probationary period to our satisfaction, you will be considered for regular employment / confirmation. Unless confirmation orders are issued in writing, you shall be treated on probation."

13 The petitioner failed to produce any proceedings from the

second respondent showing that his probation was declared. So it

should be presumed that he is on probation till the date on which

the dispute had arisen.

14 The contention of the petitioner is that his application was

forwarded and recommended by the Head of the Department of

Science & Humanities on 09.10.2017 and also by the in-charge of

the Department of English and that both the HoDs as well as the

Principal of the college have orally permitted him to proceed to

Ethiopia by granting a lien of six months. But the respondents

contend that the management of the second respondent has not

accorded permission to the petitioner in view of the academic

schedule of the University and that he voluntarily abandoned the

service also in violation of Clause 5 (b) of the service terms, which

says that he shall devote his whole time and attention to the

interest of the organization and will not engage himself in any other

work paid or in honorary capacity.

15 So, the petitioner is not permanent employee of the second

respondent. In such circumstances, he ought to have obtained

prior permission or sanction of leave from the authority since he is

still on probation. In that view of the matter, he cannot take shelter

under Section 79 of the Act and it does not come to his rescue.

16 The learned counsel for the respondents relied on the ratio

laid down in A.Mohan Case (supra) wherein this Court observed as

follows:

13. But to say that every Society or Corporation imparting education is discharging a public duty and is amenable to Writ jurisdiction, in my humble opinion, is not correct. Engagement of staff or employees in every private unaided educational institution cannot be said to be a public function. It is a purely private arrangement made by the said institution to carry out its aims and objectives. Only where a public function breach is alleged, then a Writ Petition would lie and not otherwise. If contention of petitioners is accepted, it would open the flood gates and every dispute in every private unaided school/college between its management and academic staff would then brought before the High court in judicial review.

17 Basing on the above decision, the learned counsel for the

respondents submitted that the second respondent herein is also a

private educational institution where purely private arrangement

made by the said institution to carry out its aims and objectives.

Hence jurisdiction under Article 226 of the Constitution of India is

not amenable to the petitioner.

18 At this juncture, the learned senior counsel for the petitioner

contends that calendar year of the country where the petitioner

sought employment at Adis Ababa, Ethiopia is 10 years behind the

English calendar as per Google Internet sources, therefore, the

contention of the respondents that the offer letter of petitioner is of

dated 16.08.2007 cannot be countenanced. This issue, however, is

not relevant at this juncture to arrive at a conclusion. The learned

senior counsel also placed reliance on the judgment of a Full Bench

of erstwhile High Court of Andhra Pradesh in Sri Konaseema Co-

operative Central Bank Ltd., Amalapuram vs. N.Seetharama

Raju1. In the above judgment, the Full Bench observed at para

No.51 as follows:

"51. Summary:

From the above discussion the following proposition's emerge :--

(i) If a particular co-operative society can I be characterised as a 'State within the meaning of Article 12 of the Constitution (applying the tests evolved by the Supreme Court in that behalf), it would also be an 'authority' within the meaning, and for the purpose, of Art. 226 of the Constitution. In such a situation, an order passed by a Society against its employee in violation of the bye-laws, can be corrected by way of a writ petition. This is not because the bye-laws have the force of law, but on the ground that having framed the bye-laws prescribing the service conditions of its employees, the Society must follow them, in the interest of fairness. If it is left to the sweet will and pleasure of the Society either to follow or not to follow the bye-laws, it would be inherently arbitrary,, and may very likely give rise to discriminatory treatment. A society, which is a 'State', has to act in conformity with Art. 14 and, for that reason, it will be made to follow the bye-laws.

(ii) Even if a Society cannot be characterised as a 'State' within the meaning of Art. 12, even so a writ would lie against it to enforce a

1 AIR 1990 AP 171

statutory public duty which an employee is entitled to enforce against the Society. In such a case, it is unnecessary to go into the question whether the Society is being treated as a 'person', or an 'authority', within the meaning of Art. 226 of the Constitution. What is material is the nature of the statutory duty placed upon it, and the Court will enforce such, statutory public duty."

19 Relying on the above observations, the learned senior counsel

for the petitioner submits that it is the duty of the Court to enforce

the statutory public duty for the rights effected to an employee

which is covered under Article 14 of the Constitution of India and

hence the present writ petition under Article 226 of the Constitution

of India is maintainable.

20 However, in the above case, the petitioner was Co-operative

Central Bank Limited whereas in the present case, the petitioner is

an educational society. Co-operative Society is different from

educational society.

21 The learned counsel for the petitioner also draws the attention

of this Court to Section 2 (35) of the A.P.Education Act, 1982 which

deals with 'private institution', which reads as under:

'Private Institution' means an institution imparting education or training, established and administered or maintained by any body of persons, and recognized as educational institution by the Government, and includes a college, a special institution and a minority educational institution, but does not include an educational institution.

22 Therefore, the learned senior counsel for the petitioner, in the

light of the above definition, vehemently contends that since the Act

itself covers the private educational institutions, a writ petition

under Article 226 of the Constitution of India is maintainable and

therefore, the respondents ought to have followed the procedure in

terms of Section 79 of the Act and without compliance to the

procedure laid under Section 79 of the Act, the respondents have

arbitrarily terminated the services of the petitioner.

23 Even assuming that the present writ petition is maintainable,

and even assuming that the impugned order is perverse, still, the

petitioner filed the present writ petition without availing the

alternative remedy of appeal provided under the A.P. Education Act,

1982 since the petitioner can challenge the order of the second

respondent before the appellate authority under Section 80 of the

Act and further appeal to the Government under Section 81 of the

said Act. The petitioner without exhausting such effective

alternative remedies has straight away rushed to this Court.

Therefore, the writ petitioner is not entitled to the relief sought for

for not availing the statutory remedy of appeal.

24 It is also to be borne in mind that the application of the

petitioner to the foreign university was not routed through the

respondent organization. Therefore, it should be presumed that the

petitioner on his own volition has applied to the post in Ethiopia

without the knowledge of the respondent organization. The

appointment of the petitioner in the respondent society was not

made on regular basis against any notification being issued for that

purpose. In such a situation he cannot claim lien as of right.

25 As per Rule No.13 of the Service Rules for the Institutions

managed by MES, Hyderabad, which deals with 'Lien' says that

grant of lien is solely at the discretion of EC of MES. Therefore, the

contention of the petitioner that his application was forwarded and

recommended by the Head of the Department of Science &

Humanities on 09.10.2017 and also by the in-charge of the

Department of English and that both the HoDs as well as the

Principal of the college have orally permitted him to proceed to

Ethiopia by granting a lien of six months does not have any sanctity

because it is the Executive Committee of the respondent society has

to accord such lien for any employee of their society.

26 For the foregoing reasons and in the light of the principle

enunciated in the cases cited supra, this Court finds no merit in the

writ petition and accordingly the same is liable to be dismissed.

27 In the result, the writ petition is dismissed. However, liberty is

granted to the petitioner to ventilate his grievance before the

appropriate authority if he is aggrieved by the impugned order. No

order as to costs.

28 Miscellaneous petitions if any pending in this writ petition

shall also stand dismissed.

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E.V.VENUGOPAL, J.

Date:23 .03.2023 Kvsn