Allahabad High Court
Bruce Henderson vs State Of U.P. And 9 Others on 10 September, 2020
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 38 Case :- WRIT - A No. - 4789 of 2020 Petitioner :- Bruce Henderson Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Udai Chandani,Deepak Kumar Counsel for Respondent :- C.S.C.,Hritudhwaj Pratap Sahi,Samarath Singh,Sankalp Narain Hon'ble Pankaj Bhatia,J.
Order on Preliminary Issue Heard Sri Gajendra Pratap Singh, Senior Advocate assisted by Sri Udai Chandani, counsel for the petitioner and Sri Vijay Kumar Singh, Senior Advocate assisted by Sri Sankalp Narain, counsel for the respondents.
This court vide order dated 3.9.2020 had framed a preliminary issue with regard to the maintainability of the writ petition against a private unaided Institution. The said issue is being decided by means of the present order.
The writ petition has been filed challenging the action of the respondent no. 4. In para 4 of the writ petition, it has been alleged that the respondent no. 4, Society, was incorporated in the name and style of "St. Marks School Society", which is a registered society registered under the Societies Registration Act and runs school in the name of St. Marks School and College, Jhansi. The preliminary issue thus to be decided that whether a writ would lie under the said unaided educational institution run by a Society registered under the Societies Registration Act or not.
Sri Gajendra Pratap, Senior Advocate strenuously argued that the said issue is no more res-integra in view of Full Bench judgment of this Court in the case of Roychan Abraham Vs. State of U.P., Judgment dated 26th February, 2019 passed in Writ-A No. 63708 of 2014. He has also placed reliance on the following judgments:-
1. Marwari Balika Vidyalay v. Asha Srivastava; 2019(2)S.C.T. 197.
2. Iftekhar Ahmad v. State of U.P & Others., judgment dated 15.10.2012 passed in Writ-A No. 18803 of 2008.
3. Frank Anthony Public School Employees' Association v. Union of India and Others; 1986 (4) SCC 707.
4. Committee of Management Adarsh College of Education v. State of U.P. and Others; judgment dated 28.5.2014 passed in Writ Petition No. 1168 (M/S) of 2014.
5. Committee of Management St. v. District Inspector of Schools and Others; (2001) 1 UPLBEC 487.
6. Ramesh Ahluwalia v. State of Punjab; 2012(12) SCC 331.
7. Anandi Mukta Sadguru v. V.R. Rudani; 1989(2) SCC 691.
8. B.C.C.I v. Cricket Association of Bihar and Others; (2015) 3 SCC 251.
9. K. Krishnamachryulu v. Shri Venketeshwara Hindu College; 1997 (1) CLR 1133.
10. V. Ramani v. Chairman CBSE (Madras); 2009 LIC 2730.
11. P. Jeyachandran v. Director of Technical Education (Madras); 2010 (2) MLJ 934.
12. Ishaan Tyagi v. Committee of Management Sardar Bhagwan Singh Post Graduate Ins. (Uttarakhand); 2007(1) U.D. 625.
On the other hand, Sri Vijay Singh, Senior Advocate has placed reliance on the following judgments to argue that the writ petition is not maintainable against the private unaided institution:-
1. M.K. Gandhi and Others v. Director of Education; 2005(4) ESC 2265 (All).
2. C/M Delhi Public School and Others v. M.K. Gandhi and Others; 2015(17) SCC 353.
3. Vatsal Gupta v. State of U.P.; 2015 (11) ADJ 161.
4. Vatsal Gupta v. State of U.P., 2016(1) ADJ 832.
5. C/M La Martiniere College Lucknow v. Vatsal Gupta and Others (Supreme Court), Civil Appeal No. 7030 of 2016.
6. Roychan Abraham v. State of U.P. and Others (Full Bench); 2019(3) ADJ 391.
7. Ramakrishna Mission and Others v. Kago Kunya (Supreme Court); 2019(5) SCALE 559.
8. Rajesh Kumar Srivastava and Others vs. State of U.P. and Others; Writ-A No. 29911 of 2012.
A Full Bench judgment of this Court considered the specific question referred before the said Full Bench in the following terms:-
"In my opinion, since the judgment of Ramesh Ahluwalia (supra) clearly stipulates that even a purely private body where the State has no control over its internal affairs would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution if it discharges a public function or public duty, the judgment of the Full Bench of this Court in M.K. Gandhi as well as the Division Bench judgment in Anjani Kumar Srivastava needs to be revisited.
It is, therefore, directed that the records of this case be placed before the Hon'ble Chief Justice for referring the matter to the Larger Bench in the light of the judgment of the Supreme Court in the case of Ramesh Ahluwalia."
The Full Bench after considering the entire gamut of cases answered the reference as under:-
"64. Question (i): Private Institutions imparting education to students from the age of six years onwards, including higher education, perform public duty primarily a State function, therefore are amenable to judicial review of the High Court under Article 226 of the Constitution of India."
The Full Bench has taken into consideration the judgments relied upon by the parties before me and being bound by the Full Bench, I hold that the writ petition would lie against the institution being St. Marks School and College, Jhansi. Thus, the preliminary objection raised by the respondent is rejected and following the Full Bench judgment I hold that the writ petition is maintainable.
Now, the matter shall be heard with regard to the merits of the averments that may be raised by the petitioner.
The preliminary issue is decided accordingly.
Order on Merits The present petition has been filed alleging that the petitioner is working as the Principal of the Institution since 2.7.2012 and was confirmed in the year 2014. It is further stated that a suspension order was passed against the petitioner on 7.3.2020 and later on the said suspension order was approved on 13.3.2020. It is further stated that allegedly an order dated 19.3.2020 has been passed terminating the services of the petitioner, however, the same has not been served on the petitioner till date. It is further stated that in pursuance to the orders passed, the respondent-Bank has restrained the petitioner from operating the Bank account. In such circumstances, the petitioner has approached this Court for the following reliefs:-
"(i) Issue, a writ, order or direction in the nature of mandamus directing the respondent no. 8 to 10 to permit the petitioner to operate the bank account Nos.(915010030593509),(916010020295458),(20235264275) and (1685830343), in the interest of justice on the basis of the order dated 29.05.2020 passed by respondent no. 3.
(ii) Issue, a writ, order or direction in the nature of mandamus directing the respondent no. 4 to 6 not to interfere in the functioning of the petitioner as Principal."
The said petition was subsequently admitted and the following reliefs were incorporated on 25.6.2020:-
"(v) Issue a suitable writ order or direction in the nature of certiorari quashing the order dated 19.3.2020 passed by respondent no. 5.
(vi) Issue a suitable writ order or direction in the nature of certiorari quashing the order dated 13.3.2020 passed by respondent no. 7.
(vii) Issue a suitable writ order or direction in the nature of certiorari quashing the order dated 7.3.2020 passed by respondent no. 5."
Thus, in sum and substance, the petitioner is aggrieved of an order whereby the services of the petitioner have been terminated.
The counsel for the respondents have placed before this Court a judgment by this Court dated 28.1.2020 passed in Writ-A No. 29911 of 2012 (Rajesh Kumar Srivastava and Others Vs. State of U.P. and Others), wherein a similar challenge was made to the contract of personal service by a privately managed unaided educational institutions. This Court after considering the entire gamut of cases held that challenge to a contract of personal service breached by a privately managed unaided educational institutions can be agitated in remedies available under common law rights as none of the exceptions noticed by the Apex Court in Executive Committee of Vaish Degree College Vs. Lakshmi Narain and Others; (1976) 2 SCC 58 are made out. Thus, no writ can be issued by this Court to allow the petitioner to continue in employment in exercise of its writ jurisdiction.
The facts of the present case are also similar to those in Writ-A No. 29911 of 2012. There is no issue that the Institution in question is not a privately managed unaided educational institutional institutions, that being the case, respectfully following the judgment dated 28.1.2020 of this court in Writ-A No. 29911 of 2012, Rajesh Kumr Srivastava (Supra), the petitioner is not entitled for issuance of a writ, as prayed for.
The writ petition is, accordingly, dismissed.
Order Date :- 10.9.2020 SR