Calcutta High Court (Appellete Side)
Santa Kanungo vs The State Of West Bengal & Ors on 5 September, 2018
Author: Arindam Sinha
Bench: Arindam Sinha
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05.09.2018
Item no. (22)
ddas WP 14211 (W) of 2018
Santa Kanungo
Vs.
The State of West Bengal & Ors.
Mr. E. Bari
Mr. Shuvro P. Lahiri
... ... For the petitioner
Mr. Susanta Kumar Gangopadhyay
... ...For the Vidyasagar University
Mr. Pratik Dhar, ld. sr. adv.
Mr. Samir Halder
.. ..For respondent nos. 3 to 7
Mr. Yasin Ali
Ms. Tapati Samanta
.. ...For the State
Petitioner was confirmed in post of Library clerk with effect from
1st August, 2005 and got promotion to post of library in-charge on 28th
March, 2009. Impugned in this writ petition is letter dated 28th July,
2018 informing her that Governing Body took decision and accordingly
petitioner was requested to discharge duty in her confirmed post of
library clerk with immediate effect. Mr. Lahiri, learned advocate
assisting Mr. Bari, learned advocate submits, in the meantime pursuant
to memo dated 30th April, 2013 petitioner was on probation in post of
librarian. Assuming though not admitting her service as such could be
found to be unsatisfactory, she cannot be reverted to post of library
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clerk when she stood duly promoted to post of librarian in-charge.
Hence, challenge to impugned letter demoting his client.
Mr. Dhar, learned senior advocate appears on behalf of the
college and submits, writ petition is not maintainable as his client is a
private college. He relies on my judgment dated 27th August, 2018
in WP 1407 (W) of 2018 [Srikanta Maity vs. The State of West
Bengal & Ors.] in which I said, inter alia, as follows :-
"From above discussion this Court is of view that law
laid down by Supreme Court regarding interference in matters
of service conditions between employee and employer where
employer is a private institution, remedy lies in private law. As
such the writ petition is found to be not maintainable and is
accordingly dismissed."
He also relies judgment of Supreme Court in Delhi Public
School vs. M. K. Gandhi reported in (2015) 17 SCC 353.
Mr. Lahiri in reply submits, this is not a matter of service
contract between his client and her employer, being a private college.
This is a matter of demotion of his client not permissible under public
law since the college imparts education as a public function. He relies
on two judgments of Supreme Court, firstly in K. Krishnamacharyulu
vs. Sri Venkateswara Hindu College of Engineering reported in
(1997) 3 SCC 571, paragraphs 3 and 4 therein. Relevant passages
are reproduced below :-
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"4. It is not in dispute that executive instructions
issued by the Government have given them the right to claim
the pay scales so as to be on a par with the government
employees. The question is when there are no statutory rules
issued in that behalf, and the institution, at the relevant time,
being not in receipt of any grants-in-aid; whether the writ
petition under Article 226 of the Constitution is not
maintainable? In view of the long line of decisions of this
Court holding that when there is an interest created by the
Government in an institution to impart education, which is a
fundamental right of the citizens, the teachers who impart the
education get an element of public interest in the
performance of their duties. As a consequence, the element of
public interest requires regulation of the conditions of service
of those employees on a par with government employees. In
consequence, are they also not entitled to the parity of the
pay scales as per the executive instructions of the
Government? It is not also in dispute that all the persons who
filed the writ petition along with the appellant had later
withdrawn from the writ petition and thereafter the
respondent-Management paid the salaries on a par with the
government employees. Since the appellants are insisting
upon enforcement of their right through the judicial pressure,
they need and seek the protection of law. We are of the view
that the State has obligation to provide facilities and
opportunities to the people to avail of the right to education.
The private institutions cater to the need of providing
educational opportunities. The teacher duly appointed to a
post in the private institution also is entitled to seek
enforcement of the orders issued by the Government. The
question is as to which forum one should approach. The High
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Court has held that the remedy is available under the
Industrial Disputes Act. When an element of public interest is
created and the institution is catering to that element, the
teacher, being the arm of the institution, is also entitled to
avail of the remedy provided under Article 226; the
jurisdiction part is very wide. It would be a different position,
if the remedy is a private law remedy. So, they cannot be
denied the same benefit which is available to others.
Accordingly, we hold that the writ petition is maintainable.
They are entitled to equal pay so as to be on a par with
government employees under Article 39 (d) of the
Constitution."
Secondly, he relies on Ramesh Ahluwalia vs. State of Punjab
reported in (2012) 12 SCC 331, to paragraphs 12, 13 and 14 therein
:
"12. We have considered the submissions made by the
learned counsel for the parties. In our opinion, in view of the
judgment rendered by this Court in Andi Mukta Sadguru
Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust there can be no doubt 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, for issuance of a
writ of mandamus. Provided, of course, the private body is
performing public functions which are normally expected to be
performed by the State authorities.
13. In the aforesaid case, this Court was also
considering a situation where the services of a Lecturer had
been terminated who was working in the college run by the
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
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Jayanti Mahotsave Smarak Trust. In those circumstances,
this Court has clearly observed as under: (V.R. Rudani case,
SCC pp.700-701, paras 20 & 22)
"20. The term 'authority' used in Article 226, in
the context, must receive a liberal meaning unlike the
term in Article 12. Article 12 is relevant only for the
purpose of enforcement of fundamental rights under
Article 32. Article 226 confers power on the High
Courts to issue writs for enforcement of the
fundamental rights as well as non-fundamental rights.
The words 'any person or authority' used in Article 226
are, therefore, not to be confined only to statutory
authorities and instrumentalities of the State. They
may cover any other person or body performing public
duty. The form of the body concerned is not very
much relevant. What is relevant is the nature of the
duty imposed on the body. The duty must be judged
in the light of positive obligation owed by the person
or authority to the affected party. No matter by what
means the duty is imposed, if a positive obligation
exists mandamus cannot be denied.
x x x x
22. Here again we may point out that
mandamus cannot be denied on the ground that the
duty to be enforced is not imposed by the statute.
Commenting on the development of this law, Professor
de Smith states : 'To be enforceable by mandamus a
public duty does not necessarily have to be one
imposed by statute. It may be sufficient for the duty
to have been imposed by charter, common law,
custom or even contract.' We share this view. The
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judicial control over the fast expanding maze of bodies
affecting the rights of the people should not be put
into watertight compartment. It should remain flexible
to meet the requirements of variable circumstances.
Mandamus is a very wide remedy which must be easily
available 'to reach injustice wherever it is found'.
Technicalities should not come in the way of granting
that relief under Article 226. We, therefore, reject the
contention urged for the appellants on the
maintainability of the writ petition."
The aforesaid observations have been repeated and
reiterated in numerous judgments of this Court including the
judgments in Unni Krishnan and Zee Telefilms Ltd. brought to
our notice by the learned counsel for the appellant, Mr.
Parikh.
14. In view of the law laid down in the aforesaid
judgments of this Court, the judgment of the learned Single
Judge as also the Division Bench of the High Court cannot be
sustained on the proposition that the writ petition would not
be maintainable merely because the respondent institution is
a purely unaided private education institution. The appellant
had specifically taken the plea that the respondents perform
public functions i.e. providing education to children in their
institutions throughout India."
Mr. Lahiri submits further, respondent private college had itself
moved this Court under article 226 of Constitution of India. He hands
up orders dated 3rd May, 2017 and 17th May, 2017 passed respectively
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by learned single judge and Division Bench of this Court in writ petition
and arising on order made therein, appeal.
In Srikanta Maity (supra) judgment of Supreme Court in
Anandi Mukta Sadguru Shree Mukta Jeevandasswami Suvarna
Jaya vs. V. R. Rudani reported in AIR 1989 SC 1607, was
considered. Supreme Court in V.R. Rudani (supra) said:-
"If the rights are purely of a private character no
mandamus can issue. If the management of the college is
purely a private body with no public duty, mandamus will
not lie. These are two exceptions to Mandamus. But once
these are absent and when the party has no other equally
conven-ient remedy, mandamus cannot be denied."
In Srikanta Maity (supra) petitioner had asked for his employer, a
private college, be compelled to allow him to serve till age 62 on plea
such was retirement age prescribed by the authorities. That plea was
not considered on view taken, it related to private law remedy of
petitioner.
In K. Krishnamacharyulu (supra) similar question was
considered by Supreme Court where appellants were seeking equal pay
for equal work on par with other government employees from their
employer, a private college. Paragraph 4 in the judgment has already
been reproduced above. Supreme Court said appellants' writ petition
was maintainable on their claim of parity with Government employees
under clause (d) in article 39 of Constitution of India. This is a
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distinguishing feature inasmuch as appellants before Supreme Court
were seeking enforcement of a right emanating from Constitutional
provision of principles of policy to be followed by States.
On perusal of Ramesh Ahluwalia (supra) it appears appellant
was directed to avail remedy as available before Punjab School
Education Tribunal set up by State of Punjab. However, it was decided
that judgment of learned single Judge as also Division Bench, being
considered by Supreme Court, could not be sustained on proposition
that the writ petition would not be maintainable merely because
respondent Institution is a purely unaided private educational
institution. Supreme Court had considered its earlier judgments, inter
alia, in V. R. Rudani (supra). In V. R. Rudani (supra) two exceptions
were carved out as aforesaid. It is in that context, as it appears to this
Court, Supreme Court said, judgment of learned single Judge and
Division Bench of the High Court cannot be sustained on the
proposition that the writ petition would not be maintainable merely
because respondent institution is a purely unaided private educational
institution.
Facts in this case are that petitioner is seeking to enforce her
right to promoted post by application of public law. Promotion having had been given by the college, it is in breach of the term in demoting petitioner to a post below. This Court is unable to find right to relief and remedy of petitioner against such breach, under public law. This 9 appears to be the position in law. That the private college moved this Court to exercise writ jurisdiction doesn't alter the situation for petitioner. Writs can be issued only on respondents. As such there can be no interference. Petitioner must find remedy in private law.
Writ petition is disposed of.
(Arindam Sinha, J.)