Telangana High Court

Miss.Nasreen Sultana vs The State Of Telangana on 14 February, 2025

     THE HON'BLE THE ACTING CHIEF JUSTICE SUJOY PAUL
                           AND
          THE HON'BLE SMT. JUSTICE RENUKA YARA

            WRIT APPEAL Nos.1318 AND 1320 OF 2024

COMMON JUDGMENT (per the Hon'ble the Acting Chief Justice):

     Sri   Sadu   Rajeswara     Reddy,   learned   counsel    for   the

appellants; Learned Government Pleader for Services-I appearing

for respondent Nos.1 to 4 and Sri Srinivas Chamarthy, learned

counsel for respondent Nos.5 and 6.

2. Regard being had to the similitude of the questions involved,

on the joint request of the parties, the matters were analogously

heard on admission and decided by this common judgment.

3. These intra-Court appeals take exception to the common

order dated 11.03.2024 passed in W.P.Nos.38560 and 38638 of

2018.

4. Briefly stated, the relief claimed by the appellants (writ

petitioners) was to issue a writ of mandamus declaring the

inaction of the respondents in absorbing their services from

un-aided lecturer posts to clear aided vacant posts of lecturers,

despite availability of clear aided vacant posts of lecturers, as

arbitrary and bad in law and consequently to direct the

respondents to absorb the appellants' services against the clear

HACJ & RY,J WAs_1318 & 1320 of 2024

aided vacant posts of lecturers in the respondents No.5 and 6 -

College (hereinafter referred to as, "the College") with all

consequential benefits with effect from 12.08.2005.

5. Before the writ Court, the Government and the College filed

their counters and a common stand was taken that the College is

a private un-aided institution. The College, in its counter,

categorically pleaded that initially it was getting some grant-in-aid

for some posts. However, the College subsequently decided to run

the institution on 'self-finance' basis and accordingly self-finance

courses were introduced. Consequently, the College surrendered

the aided posts in the year 2018 and there existed no aided post

in the College.

6. In the counter filed by the Government, it was stated that

the appellants were appointed against unaided posts by a private

management. The appellants cannot be absorbed against the

aided posts in the absence of existence of any such posts.

7. Learned Single Judge, in the impugned order, opined that

the appellants were appointed as lecturers against un-aided posts

and the College has surrendered the grant-in-aid posts in the year

2018. Importantly, the learned Single Judge noticed that the

HACJ & RY,J WAs_1318 & 1320 of 2024

appellants have not chosen to file their appointment orders to

demonstrate whether they were appointed and working against

any aided posts.

8. Learned Single Judge further opined that the appellants

were working against un-aided posts and all the aided posts were

surrendered by the College. Thus, no relief is due to the

appellants.

9. Learned counsel for the appellants criticized the aforesaid

findings by contending that the appellants have categorically

pleaded that they were working in the College, which is an Aided

Minority College, and they were working against aided posts and

therefore, the writ petitions were maintainable under Article 226

of the Constitution of India.

10. Learned counsel for the appellants, by placing reliance on

the rejoinder filed by the appellants to the counter filed by the

Government in the writ petitions, urged that the writ petitions

were not only maintainable, in view of Article 30(1) of the

Constitution of India, the writ petitions should have been allowed.

HACJ & RY,J WAs_1318 & 1320 of 2024

He placed reliance on the judgment of the Supreme Court in

Commissioner of Collegiate Education v. R.Srinivas 1.

11. Per contra, learned counsel for the Government and the

learned counsel for the College supported the order of the learned

Single Judge.

12. The parties have confined their arguments to the extent

indicated above and no other point is pressed.

13. At the outset, this Court requested the learned counsel for

the appellants to file the appointment orders of the appellants to

bolster his submission that the appellants were working against

aided posts. We wonder to notice the reluctance with which our

request was turned down by the learned counsel for the

appellants. The learned Single Judge has already observed that

for the reasons best known to the appellants, they have not filed

the appointment orders.

14. The categorical stand of the respondents before the learned

Single Judge was that the appellants were not working against

aided posts. We find no reason to disbelieve the said stand

because if the appellants were working against aided posts and

(2016) 14 SCC 400

HACJ & RY,J WAs_1318 & 1320 of 2024

appointment orders reflecting the same, the appellants would have

certainly filed the same. The relief claimed in the writ petitions

was to absorb the appellants from un-aided lecturers to clear

aided vacant posts. Thus, it is clear like noon day that the

appellants were working as un-aided lecturers in the concerned

department of the College.

15. Article 30(1) of the Constitution of India, on which reliance is

placed, does not help the appellants in any manner for the relief

claimed. The College categorically pleaded that the aided posts

stood surrendered in the year 2018. No relief is claimed in the

writ petitions to declare such surrender as bad in law. Thus,

there existed no posts which were receiving grant-in-aid against

which the appellants could have been absorbed. No documentary

evidence to substantiate the same was filed by the appellants. It

was certainly within the province of the College to run the

institution in 'self-financing mode'.

16. The learned Single Judge, in our considered opinion, has

taken a plausible view and opined that in the absence of any aided

posts, no mandamus can be issued to absorb the appellants.

HACJ & RY,J WAs_1318 & 1320 of 2024

17. At the appellate stage, I.A.No.1 of 2025 in W.A.No.1318 of

2024 and I.A.No.1 of 2025 in W.A.No.1320 of 2024 are filed to

receive the documents which contain "absentee statement for the

month of December, 2006". The vacancy position of 2006 is of no

use for the appellants because the vacancies against which the

appellants were claiming the benefit were not shown to be existing

when the writ petitions were decided. Thus, the said documents

are of no assistance to the appellants.

18. The appellants placed reliance on certain judgments. The

entire legal journey regarding grant of relief against unaided

institution is recently considered by the Supreme Court in St.

Mary's Education Society v. Rajendra Prasad Bhargava 2. After

considering the previous judgments in Executive Committee of

Vaish Degree College v. Lakshmi Narain 3, Anita Verma v.

D.A.V. College Management Committee 4, Binny Ltd. v.

V.Sadasivan 5, Sushmita Basu v. Ballygunge Siksha Samity 6,

Satimbla Sharma v. St. Paul's Senior Secondary School 7,

Committee of Management, Delhi Public School v.

(2023) 4 SCC 498

(1976) 2 SCC 58

(1992) 1 UPLBEC 30

(2005) 6 SCC 657

(2006) 7 SCC 680

(2011) 13 SCC 760

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M.K.Gandhi 8 and Trigun Chand Thakur v. State of Bihar 9, the

Apex Court came to hold as under:

"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."

It was further held as under:

"67. ...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."

Lastly, it was poignantly held as under:

"75.4. ...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."

(Emphasis Supplied)

(2015) 17 SCC 353

(2019) 7 SCC 513

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19. In the instant case, the appellants could not establish any

breach of law or violation of any statutory provision. In the

absence thereof, no relief was due to the appellants and the

learned Single Judge has not committed any error of law in

rejecting their claim.

20. Thus, the admission is declined and the writ appeals are

accordingly dismissed. There shall be no order as to costs.

Miscellaneous applications, if any pending, shall stand