Himachal Pradesh High Court
Regional Director vs Shri. Dharmender Kumar And Ors on 24 June, 2024
Author: M.S. Ramachandra Rao
Bench: M.S. Ramachandra Rao
Neutral Citation No. ( 2024:HHC:3884-DB ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
LPA No. 66 of 2017 a/w CWP Nos.
1484 of 2018, 264, 287, 912, 913, 914, 915, 2961, 2963 and 4111 of 2019, 265 and 1389 of 2020, 68, 2852, 2855, 3197 and 3392 of 2022, LPA Nos.77 and 83 of 2019 Reserved on : 12.06.2024 Decided on : 24.06.2024
1. LPA No. 66 of 2017 Regional Director, DAV School, Shimla and Ors.
r ..............Appellants.
Versus
Shri. Dharmender Kumar and Ors. ............Respondents.
2. CWP No. 1484 of 2018
Mamta Rani.
..............Petitioner.
Versus
State of H.P. and Ors. ............Respondents.
3. CWP No. 264 of 2019
Suman Bala.
..............Petitioner.
Versus
Central Board of Secondary Education and Ors.
............Respondents.
::: Downloaded on - 24/06/2024 20:32:54 :::CIS 2 4. CWP No. 287 of 2019.
Dinesh Kumar.
..............Petitioner.
Versus State of H.P. and Ors.
............Respondents.
5. CWP No. 912 of 2019Yogesh Kumar.
r to Versus
..............Petitioner.
State of H.P. and Ors. ............Respondents.
6. CWP No. 913 of 2019
Shruti Verma.
..............Petitioner.
Versus
State of H.P. and Ors. ............Respondents.
7. CWP No. 914 of 2019
Sunita Verma.
..............Petitioner.
Versus
State of H.P. and Ors. ............Respondents.
8. CWP No. 915 of 2019
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3
Mahidhar Sharma.
..............Petitioner.
Versus
.
State of H.P. and Ors. ............Respondents.
9. CWP No. 2961 of 2019
Tilak Raj and Ors.
..............Petitioners.
Versus
S.J.V.N.L. and Ors.
10. CWP No. 2963 of 2019
r to ............Respondents.
Avtar Singh and Ors.
..............Petitioners.
Versus
S.J.V.N.L. and Ors.
............Respondents.
11. CWP No. 4111 of 2019
Mamta.
..............Petitioner.
Versus
E.C.I. Chalet Day School and Ors.
............Respondents.
12. CWP No. 265 of 2020
Neena Bhasin.
..............Petitioner.
Versus
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4
State of H.P. and Ors.
............Respondents.
.
13. CWP No. 1389 of 2020
Divya Sharma.
..............Petitioner.
Versus
S.J.V.N.L. and Ors.
............Respondents.
14. CWP No. 68 of 2021
Yogesh Kumar and Ors.
r to ..............Petitioners.
Versus
State of H.P. and Ors.
............Respondents.
15. CWP No. 2852 of 2021
Rajesh Kumar and Ors.
..............Petitioners.
Versus
State of H.P. and Ors.
............Respondents.
16. CWP No. 2855 of 2021
Manoj Kumar and Ors.
..............Petitioners.
Versus
State of H.P. and Ors.
............Respondents.
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5
17. CWP No. 3197 of 2022
.
Heena Chauhan.
..............Petitioner.
Versus
Union of India and Ors.
............Respondents.
18. CWP No. 3392 of 2022
Mohinder Singh.
r to Versus
..............Petitioner.
State of H.P. and Ors.
............Respondents.
19. LPA No. 77 of 2019
Neena Bhasin.
..............Appellant.
Versus
State of H.P. and Ors.
............Respondents.
20. LPA No. 83 of 2019
Neena Bhasin.
..............Appellant.
Versus
State of H.P. and Ors.
............Respondents.
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6
Coram
.
Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.
Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yes For the appellants/petitioners: Mr. Neeraj Gupta, Mr. Bhuvnesh Sharma & Mr. Deepak Bhasin, Senior Advocates with Mr. Ajeet Pal Singh Jaswal, Mr. Parav Sharma, Ms. Vishali Lakhanpal, Mr. Shekhar Badola, Mr. Sambhav Bhasin, Mr. Vasu Sood, r Mr. Mohan Sharma, Mr. B. Nandan Vashista, Ms. Rashmi Parmar, Ms. Shalini Thakur, Mr. Ashwani K. Sharma, Advocates, for the appellants/petitioners in all respective appeals/writ petitions.
For the respondents : Mr. Anup Rattan, Advocate General
with Mr. Rakesh Dhaulta, Mr.
Pranay Pratap Singh, Mr. Gobind
Korla, Additional Advocates
General, Mr. Arsh Rattan, Ms.
Priyanka Chauhan and Mr.
Sidharth Jalta, Deputy Advocates General, for the respondents-State.
: Mr. Balram Sharma, Deputy
Solicitor General of
India, for the respondent-Union of India.
:Mr. K. D. Sood, Mr. Rajnish Maniktala, Ms. Devyani Sharma, 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 24/06/2024 20:32:54 :::CIS 7 Ms. Ritta Goswami, Senior
Advocates with Mr. Het Ram
Thakur, Ms. Komal Chaudhary,
Mr. Prashant Chaudhary, Ms.
.
Manisha Thamta, Mr.
Dinkar Bhaskar, Mr. Sanjeev Suri, Mr. Basant Pal Thakur, Advocates, for the respective respondents.
Satyen Vaidya, Judge All these Letters Patent Appeals and Civil Writ Petitions have been heard and are being decided together as common questions of facts and law are involved.
2. The issue for determination relates to jurisdiction of this Court under Article 226 of the Constitution of India, in the matters arising out of service contracts between the employees and management(s) of private unaided educational institutions.
3. In LPA No. 66 of 2017, the management of D.A.V. institution has assailed the judgment passed by learned Single Judge holding the writ petition for enforcement of contracts of service against private unaided educational institutions as maintainable by placing reliance on the judgment passed by Hon'ble Supreme Court in Ramesh Ahluwalia Vs. State of Punjab and Ors. (2012) 12 SCC
331. ::: Downloaded on - 24/06/2024 20:32:54 :::CIS 8
4. LPA Nos. 77 and 83 of 2019 have been filed by some members of teaching staff of St. Thomas School, Shimla, against the .
judgment dt. 22.07.2019, passed by learned Single Judge of this Court in CWP Nos. 3586 of 2015 and CWP No. 2858 of 2016 included in a bunch matter, whereby the question of maintainability of Civil Writ Petitions against the management of private unaided educational institutions to enforce contracts of service has been negated. While holding so, learned Single Judge has taken into notice the judgments passed by Hon'ble Supreme Court in Executive Committee of Vaish Degree College, Shamli and Ors. Vs. Lakshmi Narain and Ors., (1976) 2 SCC 58, S.S. Rana Vs. Registrar, Coop. Societies and Anr.
(2006) 11 SCC 634, ApolloTyres Limited Vs. C.P. Sebastian (2009) 14 SCC 360, Committee of Management, Delhi Public School and Anr. Vs. M.K. Gandhi and Ors. (2015) 17 SCC 353, Sushmita Basu and Ors. Vs. Ballygunge Siksha Samity and Ors. (2006) 7 SCC 680 and K.K. Saksena Vs. International Commission on Irrigation and Drainage and Ors. (2015) 4 SCC 670. Learned Single Judge further came to his conclusion by distinguishing the judgment passed by Hon'ble Supreme Court in Ramesh Ahluwalia Vs. State of Punjab and Ors. (2012) 12 SCC 331.
::: Downloaded on - 24/06/2024 20:32:54 :::CIS 95. Remaining writ petitions under consideration herein have been filed by the petitioners as employees of private unaided .
educational institutions for enforcement of contracts of service against their respective managements. The managements of D.A.V. Educational Institution, St. Thomas School, Shimla, Himalayan International School, Chharabra, Shimla, Delhi Public School, Jhakri, E.C.I. Chalet Day School, Shimla and Shiva Institution of Engineering
6.
r to and Technology, have been impleaded as respondents besides others in the above Writ petitions.
We have heard learned counsel for the parties. The arguments on behalf of the writ petitioners were led by S/Sh.
Bhuvnesh Sharma, learned Sr. Advocate and Mr. B. Nandan Vashista Advocate. All other learned counsel representing the employees adopted the lead arguments. On behalf of the respondents, lead was taken by Mr. Rajnish Maniktala, learned Sr. Advocate and others adopted his arguments.
7. On facts, there is no dispute that the Civil Writ Petitions have been filed to enforce the contracts of service between employees and management of private unaided educational institutions.
8. The writ petitioners endeavored to persuade us on the grounds, firstly, that the Union of India and State Government are ::: Downloaded on - 24/06/2024 20:32:54 :::CIS 10 equipped with plethora of legislations, statutory rules/regulations and executive instructions controlling the benefits of the teachers of .
private educational institutions (unaided), who form an integral part of education system and secondly, by placing reliance on number of judicial precedents viz. K. Krishnamacharyulu and Ors. Vs. Sri Venkateswara Hindu College of Engineering and Anr. (1997) 3 SCC 571, T.M.A Pai Foundation and Ors. Vs. State of Karnataka and Srivastava r to Ors. (2002) 8 SCC 481, Ramesh Ahluwalia Vs. State of Punjab and Ors. (2012) 12 SCC 331, Marwari Balika Vidyalaya Vs. Asha and Ors. (2020) 14 SCC 449 and Jigya Yadav Vs. Central Board of Secondary Education and Ors. (2021) 7 SCC 535, to canvass that the involvement of public law element has been upheld by Hon'ble Supreme Court in relation with the service contracts between employees and management of private unaided educational institutions.
9. On the other hand, respondents have urged that the perception evolved by the petitioners with respect to the legal position holding the field, is incorrect. They have placed heavy reliance on the judgment passed by Hon'ble Supreme Court in St. Mary's Education Society and Anr. Vs. Rajendra Prasad Bhargava and Ors. (2023) 4 SCC 498.
::: Downloaded on - 24/06/2024 20:32:54 :::CIS 1110. With the purpose to examine first contention of the Writ petitioners, we have scanned through the provisions of Right of .
Children to Free and Compulsory Education Act 2009 and Himachal Pradesh Recognition of Private Educational Institution Act, 1997. We have also looked into the provisions of Central Board of Secondary Education (hereinafter to be referred as the 'CBSE') affiliation bye-laws as the educational institutions involved in these cases have been affiliated by CBSE. Article 16 of the Constitution of Board of CBSE has also been glanced by us for the sole purpose to ascertain whether there is any control (even if remote it may be) of the Government or any instrumentality of the State on the service contracts involved in the determination of issue before us. Save and except the powers vested in the State functionaries to provide rules/regulations for such control, we could not find any other material. The advisory or directives to the State functionaries, as noticed above, have also been found to be on paper and in fact, no such rules/regulations controlling the domain of service contracts between the employees and management of private unaided educational institutions have been found to exist. Even learned counsel for the petitioners also could not point out any of such legislation, rule or regulation.
::: Downloaded on - 24/06/2024 20:32:54 :::CIS 1211. On the proposition of law, we have found that this Court is not empowered to exercise jurisdiction under Article 226 of the .
Constitution to enforce the service contracts between employees and managements of private unaided educational institutions for want of involvement of public law element. There is no gainsaying that the involvement of public law can be seen in the private service contracts if such contracts are controlled by public authority with the backing of legislation, rule or regulation or at least executive instructions. In the cases in hand, we have not come across any material to infer the existence of public law element in the private contracts in question.
12. Even after analyzing the contentions of the petitioners in the backdrop of judgments cited by them, we have not been able to concur with the petitioners. The judgment in K. Krishnamacharyulu and Ors. Vs. Sri Venkateswara Hindu College of Engineering and Anr. (1997) 3 SCC 571, will not help cause of Writ petitioners for the reason that in the facts of said case admittedly there was an interest created by the government in an institution to impart education by issuance of directives to pay them the same scale as was available to the government employees and thus, in this context it was held that the teachers got an element of public interest in the performance of their duties. In T.M.A Pai Foundation and Ors. Vs. State of ::: Downloaded on - 24/06/2024 20:32:54 :::CIS 13 Karnataka and Ors. (2002) 8 SCC 481 also there is no mandate of law supporting the writ petitioners, rather in para-64 of the judgment .
it has clearly been observed that in the case of a private institution the relationship between the management and the employees is contractual in nature. With a purpose to protect the employees of privately managed educational institutions from the long litigations and unnecessary expenses, Hon'ble Supreme Court had issued directive that an Educational Tribunal in each District in a State would be appropriate to enable the aggrieved teacher to file an appeal against the decision of the management effecting the service conditions.
13. As regards Ramesh Ahluwalia Vs. State of Punjab and Ors. (2012) 12 SCC 331 and Marwari Balika Vidyalaya Vs. Asha Srivastava and Ors. (2020) 14 SCC 449, both the views have been distinguished by Hon'ble Supreme Court while delivering the judgment in St. Mary's Education Society and Anr. Vs. Rajendra Prasad Bhargava and Ors. (2023) 4 SCC 498. It has been clearly held that in Marwari Balika Vidyalaya's case (supra), the removal of teacher from service was subject to approval of State and hence the involvement of public law element was held to exist. The ::: Downloaded on - 24/06/2024 20:32:54 :::CIS 14 judgment in Ramesh Ahluwalia's case (supra) has been held to be per incuriam in St. Mary's case (supra).
.
14. In St. Mary's Education Society and Anr. Vs. Rajendra Prasad Bhargava and Ors. (2023) 4 SCC 498, Hon'ble Supreme Court has considered and decided the following issues:-
"2.1. (a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution?
2.2. (b) Whether a service dispute in the private realm involving a private educational r institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution?"
15. Finally, after taking into consideration a number of precedents for and against the preposition, Hon'ble Supreme Court has summed up as under:-
"75.1 An application under Article 226 of the Constitution is 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 ::: Downloaded on - 24/06/2024 20:32:54 :::CIS 15 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. 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 ::: Downloaded on - 24/06/2024 20:32:54 :::CIS 16 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 the school is a public duty within the expanded expression of the term, an employee of a nonteaching staff engaged by the school for the purpose of its administration or internal 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 nonteaching 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 nonteaching staff is regulated by some statutory provisions, its ::: Downloaded on - 24/06/2024 20:32:54 :::CIS 17 violation by the employer in contravention of law may be interfered 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."
16. Notably, while deciding CWP Nos. 3586 of 2015 and 2858 of 2016, out of which LPA Nos. 77 and 83 of 2019 have arisen, after taking into consideration the judicial precedents, as noticed above, learned Single Judge has held as under:-
"31. Thus, what can be concluded is that the teaching and non-teaching staff of the school related to CBSE is neither a public servant working under the Union of India or State nor an employee employed by a body, which is a State within the Article 12 of the Constitution of India.
32. The contract of personal service cannot be enforced in other circumstances even against an authority discharging public function under Article 226 of the Constitution of India.
33. In the instant case, the relief sought by the petitioners is not for enforcement of any order issued ::: Downloaded on - 24/06/2024 20:32:54 :::CIS 18 by the government but for enforcing private right available to them by virtue of contract of service and the same is not enforceable by way of a writ petition in .
view of the law expounded by the Hon'ble Supreme Court (supra).
34. Therefore, once this Court holds that it has no jurisdiction then, obviously, it cannot go into the merits of the case much less to decide the same on merits.
35. Since no writ of the teaching and non teaching staff is maintainable against St. Thomas School, Shimla, therefore, all the aforesaid writ petitions are held to be not maintainable and are dismissed as such, reserving liberty to the petitioners to avail such remedy as is available to them under law."
17. Thus, the legal position that emerges is that unless there is involvement of public law element, writ to enforce private service contracts between employees and managements of private unaided educational institutions cannot be issued. For determination of involvement of such public law element, the private service contracts need be under some control of the government backed by legislation, rules/regulations or at least executive instructions or the act complained of must have a direct nexus with the discharge of public duty. As considered and held in St. Mary's case (supra), merely because the private unaided educational institutions have affiliation ::: Downloaded on - 24/06/2024 20:32:54 :::CIS 19 from CBSE or any other instrumentality of the State, cannot be the determining factor of involvement of public law element.
.
18. In view of above discussion, all the Writ petitions as also the LPA Nos. 77 and 83 of 2019, are dismissed. LPA No. 66 of 2017 is allowed. The judgment dated 03.05.2017, passed by learned Single Judge in CWP No. 5830 of 2014 is set aside.
19. Accordingly, all these appeals and Writ petitions are disposed of, so also the pending miscellaneous application(s), if any.
(M.S. Ramachandra Rao) Chief Justice (Satyen Vaidya) th 24 June, 2024 Judge (sushma) ::: Downloaded on - 24/06/2024 20:32:54 :::CIS 20 .
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