Patna High Court
Maheshwar Prasad Singh & Ors vs The State Of Bihar & Ors on 5 June, 2014
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12223 of 2013
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1. Maheshwar Prasad Singh Son Of Sri Ram Khelawan Prasad Resident Of Village
Kakhara, Police Station Noorsarai, District Nalanda
2. Anil Kumar Son Of Deo Nandan Prasad Singh Resident Of Village Fatehpur,
Police Station Fatehpur, District Patna
3. Jai Raj Prasad Son Of Late Raghav Singh Resident Of Village Barara, Police
Station Noorsarai, District Nalanda
4. Ram Nath Prasad Son Of Fakira Mahto Resident Of Village Tungi, Police Station
Deep Nagar, District Nalanda
5. Shailendra Kumar Son Of Sri Doman Garai Resident Of Village Salehpur, Police
Station Ekangarsarai, District Nalanda
6. Amarendra Kumar Son Of Ganauri Prasad Resident Of Village - Jagdishpur,
Police Station Tiyari, District Nalanda
7. Satyendra Prasad Son Of Sri Arjun Prasad Resident Of Village Jagdishpur ,
Police Station Tiyari, District Nalanda
8. Bipin Bihari Singh Son Of D.K. Singh Resident Of Village Parasbanna, Police
Station Raipur Kol Bigha, District Nalanda
9. Ramesh Chandra Choubey Son Of Garabhu Prasad Resident Of Village And P.O.
Dhanuki, District Nalanda
10. Kaushlendra Kumar Son Of Jay Mangal Singh Resident Of Village Srichandpur,
Police Station Asthawan, District Nalanda
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Director, Education, Higher Secondary, Govt.
Of Bihar, Patna
2. The Secretary, Bihar School Examination Board, Bihar, Patna
3. The Principal, Sadanand Mahavidyalaya, Biharsharif, Nalanda
4. Management Committee Through Secretary Of The Sadanand Mahavidyalaya
Biharsharif, Nalanda
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Sarvadeo Singh, Adv.
For the Respondent/s : Mr. S.K. Sharma, GA-3
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
CAV JUDGMENT
Date: 05-06-2014
Heard learned counsel for the parties.
2. The relevant portion of the prayer of the petitioners in
Patna High Court CWJC No.12223 of 2013 dt. 05-06-2014 2
this writ application reads as follows:-
"------- for quashing the resolution of the governing
body dated 12.5.2012 taken by the Respondent No.4 by which a
decision has been taken that these petitioners are not working
against the sanctioned post therefore they are not entitled for
the fund which has been provided by the State Govt. as Govt.
aid to the institutions and colleges which are not constituent
unit."
3. Let it be noted that at the outset, learned counsel for the
State, Bihar School Examination Board and the Governing Body, have
raised a preliminary objection with regard to the maintainability of the
writ application and in this regard, they have placed reliance on the
judgment of the Division Bench in the case of Santosh Kumar Vs. The
State of Bihar & Ors. reported in 2013(1)PLJR 269.
4. Learned counsel for the petitioners, in support of the
aforementioned prayer, has submitted that even though such resolution
terminating the services of the petitioners has been passed by the
Governing Body of the Sadanand Intermediate Mahavidyalaya, Bihar
Sharif (hereinafter to be referred to as 'the College'), since the matter
would relate to release of government fund by way of aid to the
petitioners, a writ application would be maintainable. In this regard, he
has not only placed reliance on the judgment of the Apex Court in the
case of Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil reported in
2010(8)SCC 329 but has also referred to an extract of the minutes of the
Patna High Court CWJC No.12223 of 2013 dt. 05-06-2014 3
meeting of the Bihar Intermediate Education Council dated 15.10.1981
for demonstrating that the criteria for sanctioned post in the private
intermediate college were already laid down by the Intermediate
Council. He has further referred to the government decision dated
26.3.2008to contend that the policy giving financial aid to the recognized intermediate colleges has been formulated by the State Government while doing away with the earlier policy of no financial assistance to the private institution which according to him had itself envisaged that the teachers/non-teaching employees in such institution, working under the prescribed standard of teaching strength, would be entitled for payment of their salary and as such, the petitioners could not be denied payment of salary as all of them were working against such sanctioned post.
5. In the considered opinion of this Court, the impugned order passed by way of resolution of the Governing Body in the meeting held on 12.5.2012, reading as follows:-
^^mijksDr ;kfpdkdRrkZvkssa esa ¼1½ egs'oj izlkn flUgk bl egkfo|ky; ea iz;ksx'kkyk okgd in ij dk;Zjr gS tks oh0vkbZ0b0lh0 iVuk ds i=kad la[;k 44@94 fnukad 20@08@94 ds vf/klwpuk ds vuqlkj l`ftr in ij ugha gSa ¼2½ vfuy dqekj bl egkfo|ky; esa iz;ksx'kkyk rduhf'k;u in ij dk;Zjr gS tks oh0vkbZ0b0lh0 iVuk ds i=kad la[;k 44@94 fnukad 20@08@94 ds vf/klwpuk ds vuqlkj l`ftr in ij ugha gSA ¼3½ t;jke izlkn iz;ksx'kkyk rduhf'k;u in ij dk;Zjr gS tks oh0vkbZ0b0lh0 iVuk ds i=kad la[;k 44@94 fnukad 20@05@94 ds vf/klwpuk ds vuqlkj l`ftr in ij ugha gSA ¼4½ 'kSysUnz dqekj iz;ksx'kkyk Patna High Court CWJC No.12223 of 2013 dt. 05-06-2014 4 okgd ds in ij dk;Zjr gS] tks oh0vkbZ0b0lh0 iVuk ds i=kad la[;k 44@94 fnukad 20@08@94 ds vf/klwpuk ds vuqlkj l`ftr in ij ugha gSa ¼5½ dkS'kysUnz dqekj iz;ksx'kkyk rduhf'k;u ds in ij dk;Zjr gS tks oh0vkbZ0b0lh0 iVuk ds i=kad la[;k 44@94 fnukad 20@08@94 ds vf/klwpuk ds vuqlkj l`ftr in ij ugha gSA ¼6½ lR;sUnz izlkn iz;ksx'kkyk okgd ds in ij dk;Zjr gS tks oh0vkbZ0b0lh0iVuk ds i=kad la[;k 44@94 fnukad 20@08@94 ds vf/klwpuk ds vuqlkj l`ftr in ij ugha gSA ¼7½ jes'k pUnz pkScs iz;ksx'kkyk okgd ds in ij dk;Zjr gS tks oh0vkbZ0b0lh0 iVuk ds i=kad la[;k 44@94 fnukad 20@08@94 ds vf/klwpuk ds vuqlkj l`ftr in ij ugha gSa ¼8½ fofiu fcgkjh flag fyfid in ij dk;Zjr gS tks oh0vkbZ0bZ0lh0 iVuk ds i=kad la[;k 44@94 fnukad 20@8@94 ds vf/klwpuk ds vuqlkj l`ftr in ij ugha gSa ¼9½ jkeukFk izlkn iz;ksx'kkyk rduhf'k;u in ij dk;Zjr gS tks oh0vkbZ0b0lh0 iVuk ds i=kad la[;k 44@94 fnukad 20-08-94 ds vf/klwpuk ds vuqlkj l`ftr in ij ugha gSA ¼10½ vejsUnz dqekj iz;ksx'kkyk okgd in ij dk;Zjr gS tks oh0vkbZ0b0lh0 iVuk ds i=kad la[;k 44@94 fnukad 20@8@94 ds vf/klwpuk ds vuqlkj l`ftr in ij ugha gSA ¼11½ lqjsUnz flag HkaMkj iky in ij dk;Zjr gS tks oh0vkbZ0b0lh0 iVuk ds i=kad la[;k 44@94 fnukad 20@08@94 ds vf/klwpuk ds vuqlkj l`ftr in ij ugha gSa dfeVh es fopkjksijkUr ;g fu.kZ; fy;k fd pqafd fcgkj ljdkj us ekuo lalk/ku fodkl foHkkx fcgkj iVuk dks izkIr vuqnku ds lkFk fn;s x;s funsZ'k i= ftldk i=kad fo0dks0@fo0j0f'k0@baVj@ukyUnk@ 24@10@1204 fnukad 23@08@2010 rFkk fo0dks0@fo0j0f'[email protected] @ ukyUnk@24@101204 fnukdad 16@01@2012 gS ds ikjk ¼A½ esa ;g Lki"V mYys[k fd;k x;k gS fd fof/kor fu;qDr Lohd`r ekud ds vUrxZr Lohd`r in ds vkyksd esa dk;Zjr f'k[kd@f'k{kdksRrj deZpkfj;ksa dks vuqnku dh jkf'k dk forj.k psd@,MokbZl ds ek/;e ls f'k{kd@f'k{kdsRrj deZpkfj;ksa ds [kkrs eas LFkkukUrj.k fd;k tk;sxkA loZlEefr ls ;g fu.kZ; fy;k x;k fd
(a) fcgkj ljdkj ds funsZ'k dk ikyu djrs gq, dfeVh us dsoy Lohd`r in ij dk;Zjr f'k{kd ,oa f'k{kdsRrj deZpkfj;ksa dk Hkwxrku Patna High Court CWJC No.12223 of 2013 dt. 05-06-2014 5 fd;k gSa
(b) mijksDr ;kfpdkdRrkZ pqafd Lohd`r in ij dk;Zjr ugha gS blfy, bUgsa fcgkj ljdkj }kjk iznRr vuqnku dh jkf'k ds Hkqxrku esa dkuquh ck/krk gS vr% bUgsa Hkqxrku ugha fd;k tk ldrk gSA** would really lead to determination of the private rights of the petitioner against the private body. Admittedly, the college is not a government college and it is only a recognized college by the then Bihar Intermediate Education Council under the Bihar Intermediate Council Act, 1994, which has since been repealed. At present, such intermediate colleges are within the domain of Bihar Education Examination Board only for the purpose of holding of the examination of the eligible students who would complete their intermediate education in such institution. The Bihar School Examination Board in fact has got no control over the service of employees of such private institution who are imparting education up to the intermediate standard.
Thus, the dispute as to whether the petitioners were appointed on a sanctioned post so as to derive the benefit of payment of salary from the aid and assistance given by the Government to the private institution as per the government policy cannot be adjudicated under the writ jurisdiction. Such a writ application in fact would not lie as was held in the case of Santosh Kumar (supra) wherein it was held as follows:-
"15. In view of discussions made above and after noticing the various authorities cited by both the parties, we are of the considered view that earlier Patna High Court CWJC No.12223 of 2013 dt. 05-06-2014 6 view of this court as reflected by Division Bench judgments in the case of Smt. Radha Kumari Singh @ Radha Kumari vs. The Governing Body of Mahanth Mahadevanand Mahila Mahavidyalay & Ors.;{1977 PLJR 110} and Chandra Nath Thakur vs. Bihar Sanskrit Shiksha Board & Anr.;{1999(1)PLJR 529} as well as a Full Bench judgement in the case of Smt. Manju Devi vs. The District Superintendent of Education, Bhagalpur & Ors;{1987 PLJR 962} does not require any reconsideration. We would, however, like to point out that earlier judgements indicated above, particularly in the case of Smt. Radha Kumari Singh (supra), it was clearly indicated that writ petition against a non statutory body such as Governing Body of a private college was not maintainable as there was no allegation of infraction of any statutory provision. In a given case where in exercise of statutory powers the University granting affiliation to a private college imposes reasonable conditions governing teachers or employees of an affiliated college, then in case of violation of Statues or Rules of the University by an affiliated college a person having corresponding right may be entitled to seek mandamus. It cannot be said in absolute terms that a writ petition is not maintainable against a private aided college even if it is a minority institution but the duty sought to be imposed upon a private body through mandamus must be of a public nature otherwise the affected employee will be denied relief in writ jurisdiction. The law laid down by the Apex Court in the case Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smark Trust and Others vs. V.R. Rudani & Ors.; {AIR 1989 SC 1607} is based upon distinction between private rights and duties on the Patna High Court CWJC No.12223 of 2013 dt. 05-06-2014 7 one side and rights and duties of public nature on the other side. It has been established by a long line of precedents that writ jurisdiction provides remedy in matters relating to public domain and for enforcement of rights flowing from Constitution or Statutes. In our view the term- "writ petition is not maintainable" is not fully apt rather proper expression should be- "writ shall not lie" when a writ petition is filed for seeking enforcement of duties other than public duties against a person or authority which is not "State" within Article 12 of Constitution.
16. x x x x
17. x x x x
18. In the facts of the case, we are of the considered view that no writ can be issued to grant any relief to the writ petitioner who is seeking a personal right of restoration of contract of service against Managing Committee of a private minority college. The writ petition is, therefore, dismissed on the ground that no writ would lie against private respondents in absence of any right in the petitioner with corresponding duty of a public nature upon the respondents.--------"
6. The reliance placed by Mr. Sarvdeo Singh, learned counsel for the petitioners on the judgment of the Apex Court in the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil reported in (2010) 8 SCC 329 far from supporting the case of the petitioners, would actually go against them. The Apex Court in the aforesaid case, in fact, had gone to hold that jurisdiction under Article Patna High Court CWJC No.12223 of 2013 dt. 05-06-2014 8 226 of the Constitution is extraordinary in nature and is not made for settling issues unless there is violation of some statutory duty on the part of some statutory authority or any infraction of Statutes or it can be shown that a private individual is acting in collusion with a statutory authority. In fact, whatever was observed by the Apex Court in the case of Shalini Shyam Shetty (supra) would itself give a death blow to the case of the petitioners inasmuch as law was laid down therein in the following terms:
"50. In the facts of the present case we find that the petition has been entertained as a writ petition in a dispute between landlord and tenant amongst private parties.
55. It is only a writ of habeas corpus which can be directed not only against the State but also against a private person.
57. Therefore, a private person becomes amenable to writ jurisdiction only if he is connected with a statutory authority or only if he/she discharges any official duty."
7. Here in the present case, can it be said that if the management of a private institution, be it Intermediate college or Senior Secondary School, which is affiliated to Bihar School Examination Board, is exercising its power either with regard to appointment or removal of its teachers/non-teaching employees, it is discharging any official duty? The only official duty for such private Patna High Court CWJC No.12223 of 2013 dt. 05-06-2014 9 institution is confined to imparting education up to Intermediate level for enabling its students to appear in the Intermediate examination conducted by the Bihar School Examination Board. Thus, if any action of the Board in relation to allowing or refusing the students of a private institution is questioned, writ petition would definitely lie but so far the employees of such private institutions are concerned, their service conditions are governed by in the realm of private law and thus, for enforcement of such claim against private institution no writ petition would lie.
8. Having said so, this Court must clarify that now during the pendency of this writ petition, the Government of Bihar itself, as with regard to its own concern of utilization of the fund by the private institutions given to them by way of grant-in-aid, has created an adjudicatory forum vide Notification dated 20.12.2013 under the aegis of BIHAR RAJYA VIDYALAYA SHIKSHAK AWAM KARMCHARI - SHIKAYAT NIWARAN NIEMAWALI, 2013. The preamble whereof reads as follows:
^^fcgkj ljdkj] f'k{kk foHkkxA vf/klwpuk la[;k 7@fo0 3&80@2011 1880 fnukad 20@12@013 Hkkjr&lafo/kku ds vuqPNsn 162 ,oa 243 rFkk fcgkj iapk;r jkt vf/kfu;e&2006 dh /kkjk 47 lifBr /kkjk 146 ,oa fcgkj uxjikfydk vf/kfu;e 2007 dh /kkjk 46] 47 lifBr /kkjk 419 ds v/khu iznRr 'kfDR;ksa dk iz;ksx djrs gq, fcgkj jkT; ljdkj] jkT; ds izkjafHkd] ek/;fed ,oa mPp Patna High Court CWJC No.12223 of 2013 dt. 05-06-2014 10 ek/;fed fo|ky;kas ¼lgk;rk izkIr ,oa vYila[;d fo|ky;ksa lfgr½ esa f'k[kd ,oa f'k{kdsRrj dfeZ;ksa ds fu;kstu d fy, vf/klwfpr fu;kstu fu;ekoyh 2006 ,oa rRi'pkr~ vf/klwfpr fu;kstu fu;ekofy;ksa ds v/khu iapk;rh jkt laLFkkvksa ,oa uxj fudk;ksa }kjk fu;r osru ij fu;ksftr f'k{kdksa ,oa f'k{kdsRrj dfeZ;ksa ds fu;kstu lEcU/kh f'kdk;rksa rFkk vihy ds fu"iknu ,oa mudh lsok lacU/kh f'kdk;rksa ds fuiVkjk ds lkFk lkFk vuqnkfur dksfV ds ek/;fed ,oa mPp ek/;fed fo|ky;ksa ds f'k{kd@f'k{kdsRrj dfeZ;ksa dh lsok lEcU/kh f'kdk;rksa ,oa vuqnku dh jkf'k ds forj.k ls lacaf/kr f'kdk;rksa ds fuiVkjk gsrq fuEufyf[kr fu;ekoyh cukrh gS& fcgkj jkT; fo|ky; f'k{kd ,oa deZpkjh f'kdk;r fuokj.k fu;ekoyh] 2013**
9. Under the aforementioned 2013 Rules, the petitioners, being covered by the definition of the Senior Secondary School receiving grant-in-aid from the State Government in terms of Rule 2 (v) read with Rule 2 (vii) are entitled to seek appropriate relief with regard to their service conditions including payment of salary and the grievance redressal forum i.e. the District Appellate Authority has been vested with power and jurisdiction to decide any matter relating to service conditions of such employees of the institutions receiving grant-in-aid from the State Government as would be evident from Rule 13(1), which reads as follows:
^^13- ftyk vihyh; izkf/kdkj ds d`R; ,oa 'kfDr;kW& ¼1½ vihyh; izkf/kdkj jkT; ds jktdh; ,oa jktdhd`r izkjafHkd] ek/;fed ,oa mPp ek/;fed fo|ky;ksa ¼ljdkjh lgk;rk izkIr ,oa vYila[;d lfgr½ esa f'k{kdksa iqLrdky;k/;{kksa] ljdkj esa vU; fu;ksftr d`R;dkfj;ksa ,oa dfeZ;ksa ds fu;kstu ls lEcfU/kr ifjoknksa@vihyksa dh lquokbZ djsxk vkSj fucVkjk djsxkA ;g muds lsok 'krksZa ls lacaf/kr ifjoknksa@vihyksa dh Hkh lquokbZ djsxk rFkk mudk fuiVkjk djsxkA ;g ljdkj ds vuqnkfur dksfV ds Patna High Court CWJC No.12223 of 2013 dt. 05-06-2014 11 fo|ky;ksa ds iz/kkuk/;kidksa] f'k{kdksa rFkk vU; d`R;dkfj;ksa dh lsokvksa rFkk jkT; ljdkj ls izkIr vuqnku ds forj.k ls lacaf/kr fooknksa dk Hkh fuiVkjk djsxkA**
10. In view of above, this Court would dispose of this writ petition with a liberty to the petitioners to approach the District Appellate Forum for redressal of their grievance for which they had filed their representations before the Bihar School Examination Board and, if they do so, nothing said in this order will come in their way in assailing the impugned decision of the Governing Body dated 12.05.2012.
11. With the aforementioned observations and liberty, this writ petition is disposed of.
(Mihir Kumar Jha, J) Rishi/Sujit-
AFR