Allahabad High Court
Mattison Educational Trust , New Delhi ... vs Avdhesh Kumar Sahai on 18 September, 2024
Bench: Chief Justice, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:64448-DB Chief Justice's Court Case :- SPECIAL APPEAL No. - 473 of 2023 Appellant :- Mattison Educational Trust , New Delhi Thru. Executive Secy. Pervez Masih Lal And Another Respondent :- Avdhesh Kumar Sahai Counsel for Appellant :- Mr. Sudeep Kumar, Advocate Counsel for Respondent :- Mr. Ashwani Kumar Singh, Advocate and Mrs. Prabha Awadhesh Sahai (In Person) Hon'ble Arun Bhansali, Chief Justice Hon'ble Jaspreet Singh,J.
1. Heard Shri Sudeep Kumar, learned counsel for the appellant and Ms. Prabha Awadhesh Sahai, respondent no.2 in person and Awadhesh Kumar Sahai respondent no.1.
2. The instant intra court appeal has been preferred against the order dated 30.08.2023 passed by the learned Single Judge in Writ-A No.31423 of 2021 (Avdhesh Kumar Sahai and another Vs. Union of India and others) whereby the learned Single Judge had passed the following order which reads as under:-
"1. Heard petitioner no.2, Ms. Prabha Avdhesh Sahay, who appears in person.
2. The present writ petition has been filed challenging the transfer order dated 02.12.2021, whereby the petitioner was transferred from Lucknow to Raymond Memorial Higher Secondary School, Falakata w.e.f. 01.01.2022.
3. It is argued by the petitioner no.2 that the said order is harsh as the son of the petitioners is studying in XIIth standard and the daughter in VIIth standard in the same school.
4. Without going into the claim of the petitioners at this stage, the present petition is disposed off permitting the petitioner no.2 to file a comprehensive representation highlighting her problem as well as the problem faced by the children before the respondent no.4 who shall consider the cause of the petitioner and pass appropriate considering the issue raised by her sympathetically within a period of three weeks from the date of submitting of the representation.
5. The petitioner no.2 would be at liberty to raise all the issues including the non-payment of the salary, which shall also be considered and decided within the above said period."
3. Submission of the learned counsel for the appellants is that the writ petition filed by the private respondents no.1 and 2 itself was not maintainable, hence any direction given by the learned Single Judge would also be without jurisdiction.
4. It is urged that as per the case of the private respondents no.1 and 2 as pleaded in the writ petition, it would indicate that the private respondents no.1 and 2 were aggrieved by an order of transfer dated 02.12.2021 in terms whereof the private respondents no.1 and 2 were transferred from Seventh Day Adventist Senior Secondary School, Lucknow, Uttar Pradesh to Raymond Memorial Higher Secondary School, Falakata with effect from 01.01.2022.
5. It is also urged that the school in question i.e. Seventh Day Adventist Senior Secondary School is governed by a private trust. The respondents no.1 and 2 being employees of a private school, hence they could not have filed the writ petition before the learned Single Judge seeking quashing of the said transfer order. It is urged that for the aforesaid reason, the order passed by the learned Single Judge was bad in the eyes of law, hence the order impugned deserves to be set aside and the writ petition be dismissed.
6. A Co-ordinate Bench of this Court after hearing the counsel for the appellant by means of order dated 10.10.2023 had granted an interim protection and it was ordered to keep the direction for consideration of the representation as directed by the learned Single Judge, in abeyance.
7. The respondents no.2 who appears in person has vehemently urged that the instant intra court appeal is not maintainable at the behest of the appellant no.1 and neither the appellant no.1 was a party in the writ petition nor the appellant no.1 has any right to maintain the instant appeal.
8. It is also submitted that the learned Single Judge has merely considered the grievance of the respondents no.1 and 2 nursed against the order of transfer and had merely provided an opportunity to the respondents no.1 and 2 to move a fresh representation which was required to be decided by the Principal of Seventh-Day Adventist Senior Secondary School. It is urged that by the impugned order no 'lis' has been decided, hence the appeal is not maintainable and deserves to be dismissed.
9. The Court has heard the learned counsel for the appellant and the respondent 2 in person. Respondent no.1 who also appeared in person has adopted the submission advanced by the respondent no.2.
10. At the outset, it may be noticed that the cause of action of the respondents no.1 and 2 before the learned Single Judge was in context with a transfer order said to have been passed against the respondents no.1 and 2. Even the learned Single Judge by the impugned order dated 30.08.2023 did not go into the claims of the respondents no.1 and 2 on merit, however, permitted the respondents no.1 and 2 to file a comprehensive representation highlighting their problems including the problem of their children and all issues regarding the non payment of salary before the Principal of the school who was directed to consider the representation and pass appropriate order sympathetically.
11. In this backdrop, the core issue that needs consideration is as to whether the writ petition filed by the respondents no.1 and 2 was maintainable before the learned Single Judge in the first place. In case if the writ petition was maintainable then a direction given to the Principal to decide the representation of the respondents no.1 and 2 may be an order by which no rights of either of the parties was decided, hence this Court may not intervene. However, if the writ petition itself was not maintainable, then the direction issued also become redundant as such direction could not have been issued.
12. Apparently, the writ petition was decided without considering the issue of maintainability nor it was raised. The record further indicates that the learned Single Judge while passing the order had merely heard the respondent no.2 in person and it does not indicate as to whether any notice was issued to the respondent no.4 in the writ petition i.e. the Principal of the school.
13. The issue as to whether a writ petition can be filed against a private school and institution has been considered by the Apex Court in the case of St. Mary's Education Society and another vs. Rajendra Prasad Bhargava and others, (2023) 4 SCC 498 wherein the Apex Court held as under:-
75. We may sum up our final conclusions 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 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 226. 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 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 school is a public duty within the expanded expression of the term, an employee of a non-teaching 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 non-teaching 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 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.
14. Considering the dictum of the Apex Court in St. Mary's (supra) and noticing the facts of the instant case, it would reveal that the respondents no.1 and 2 even as per their own averments, were the employees for Seventh Day Adventist Senior Secondary School which needless to say is a private institution. It is urged that the respondents no.1 and 2 were initially appointed by Seventh Day Adventist, Mani Nagar Gujrat and then in paragraph 3 of the writ petition, it has been stated that the respondent no.1 was appointed on the post as a Cashier/Accountant in the Seventh Day Adventist Senior Secondary School whereas the respondent no.2 was appointed as a Teacher in the year 2015 in the said school.
15. The respondents no.1 and 2 have also filed their counter-affidavit in the instant appeal and primarily in paragraphs-4 to 6 averments have been made regarding the locus of the appellant no.1 to institute the instant appeal. Further averments have been made raising allegations against various authority and the Principal of the school. However, what is interesting to note that in paragraph-16 of the counter-affidavit filed in this appeal, it is stated that the respondent no.1, who is the husband of the respondent no.2 was appointed in the non-teaching cadre on the post of Cashier/Accountant by the Western Union of Seventh Day Adventist, Pune in the State of Maharashtra and it has further been stated that the respondents no.1 and 2 were thereafter transferred from Western Indian Union of Seventh Day Adventist Pune to Jalandhar Seventh Day Adventist School and it is alleged that the true copies of the appointment letters of the respondents no.1 and 2 are enclosed as annexure nos.4 and 5. However, on perusal of the annexures no.4 and 5, it would reveal that no appointment letter has been filed and only employees service record has been brought on record as annexures no.5 and 6 relating to the respondents no.1 and 2 respectively.
16. Taking note of the aforesaid facts and documents it reveals that the respondents no.1 and 2 have been employees of some private entity and were working in the Seventh Day Adventist Senior Secondary School in Lucknow. Merely since the respondents no.1 and 2 were aggrieved by certain action of the school and the Principal including by the alleged transfer order but the fact remains that unless and until it is established that the institution where the respondents no.1 and 2 were working and the nature of dispute falls within the parameters as carved out by the Apex Court in the St. Mary 's case (supra) till then the petition cannot be maintained against a transfer order.
17. The respondents no.1 and 2 on their own showing state that they were first working in Pune whereafter they were transferred to Jalandhar and then to Lucknow and the documents that have been brought on record only reflects that the institution is private in nature and there does not appear to be any averment that the order of transfer has any nexus, direct, with the discharge of public duty and a mere individual wrong which has no ingredient of public element involved, cannot be assailed under Article 226 of the Constitution of India. Hence, this Court is of the firm view that in light of the decision of the Apex Court in St. Mary 's (supra) the writ petition itself against a private institution was not maintainable and thus the direction given by the learned Single Judge in view thereof was also not justified.
18. Lastly, it may be stated that even though the respondents no.2 made vehement submissions regarding the locus and the authority of the appellants no.1 and 2 but the fact remains that the instant appeal has been filed simplicitor on the ground that in light of the decision of the Apex Court in St. Mary (Supra), the writ petition itself was not maintainable. Despite sufficient opportunity granted to the respondents no. 1 and 2, it could not be established that the school in question was government aided nor the Service Rules were statutory in nature, hence, the petition at their behest was not maintainable.
19. For all the aforesaid reasons, the instant appeal is allowed and the impugned order dated 30.08.2023 is set aside and consequently the writ petition bearing Writ-A No.31423 of 2021 shall stand dismissed. Costs are made easy.
(Jaspreet Singh, J.) (Arun Bhansali, CJ.) Order Date :- 18.9.2024 ank