Patna High Court
Smt. Radha Kumari Singh vs The Governing Body Of Mahanth ... on 11 February, 1976
Equivalent citations: AIR1976PAT378, AIR 1976 PATNA 378
ORDER
1. This is an application for a writ in the nature of mandamus calling upon the respondents for appointing the petitioner as a lecturer in the Sanskrit Department of the Mahanth Mahadevanand Mahila Mahavidyalaya An ah, an aided college after quashing the appointment of respondent No. 2 in pursuance of a resolution of the Governing Body of the said College.
2. Briefly stated, the facts are that the petitioner was appointed temporarily a lecturer in the Department of Sanskrit by the Governing Body of the College by the letter dated 19-9-1972 (Annuexure 1). The Governing Body, however, issued an advertisement inviting applications for filling up the said post on a permanent basis. The petitioner and the aforesaid respondent No. 2 both were interviewed by the University Service Commission and the name of the petitioner was recommended along with the name of respondent No. 2 to respondent No. 1 by the University Service Commission for the post of a lecturer in the Gautam Budha Mahila College, Gaya as well as for the College in question. But by its resolution already referred to, respondent No. 2 was appointed on terminating the services of the petitioner with effect from 11-2-1975. The order was communicated to the petitioner by Memo No. 375 (3) dated 10-2-1975 (Annexure 3) by respondent No. 1 which is under challenge.
3. It is not disputed that Mahanth Mahadevanand Mahila Mahavidyalaya, Arrah is a private College affiliated to the Magadh University and the petitioner by the present application wants a writ of the nature stated above from this Court against the Governing Body of the College.
4. Mr. Tarkeshwar Dayal, appearing for contesting respondent No. 2 aforesaid raised a'preliminary objection to the maintainability of this application and grant of the relief on the ground that no writ would lie against respondent No. 1, as it was not a statutory body covered under Article 12 of the Constitution of India. In support of his contention counsel cited and if we may say so a direct authority of the Supreme Court in the case of Vidya Ram Misra v. Managing Committee, Shri Jai Narain College, (AIR 1972 SC 1450). In that case the services of a lecturer appointed by the Managing Committee of Jai Narain College, Lucknow (formerly known as Kanyakubja Degree College), an associated College of the Lucknow University were terminated by the Managing Committee of the College. He filed a writ petition before the High Court of Allahabad (Lucknow Bench) challenging the validity of the resolution of the Managing Committee in question. The learned single Judge, however, decided the matter in favour of the petitioner, but on appeal a Division Bench dismissed the writ application holding that the remedy of the appellant was to file a suit for damages inasmuch as, the relationship between the College and the lecturer was that of only a master and servant. When the matter went to the Supreme Court, the view of the Division Bench was affirmed and it was specially laid down that services of a lecturer appointed by reason of a contract having no legal force, between himself and the Managing Committee, which is not a statutory body, were terminated by the latter, the lecturer cannot have any cause of action on breach of the law but only on breach of the contract and his only remedy was by way of a suit for damages and not by way of an application under Article 226 of the Constitution. Having examined this decision we are of the view that it has got full application to the facts of the present case.
5. Mr. Kailash Roy appearing for the petitioner, however, endeavoured to distinguish this authority placing reliance upon a Full Bench decision of the Andhra Pradesh High Court in the case of Harijander Singh v. Selection Committee, Ka-katiya Medical College, Warrangal, (AIR 1975 Andh Pra 35) (FB) in which the case of Vidya Ram (AIR 1972 SC 1450) (supra) was considered and was distinguished in paragraph 75 of the report in these words:
"The authority both of AIR 1965 SC 1196 (State of Assam v. Ajit Kumar) and AIR 1972 SC 1450 (Vidya Ram v. S. J. N. College) has now considerably shaken. The two earlier decisions of the Supreme Court, i.e., AIR 1970 SC 1244, (Executive Committee of U. P. State Warehousing Corporation v. G. K. Tyagi) and AIR 1971 SC 1828 (Indian Air Lines Corporation v. Sukhdeo Rai) on the basis of which AIR 1972 SC 145Q was decided have now been distinguished in a way disapproved in Sirsi Municipality v. C. K, F. Tellis (AIR 1973 SC 855)."
The learned Judges of the Full Bench subsequently have observed that the decision in AIR 1973 SC 855 makes a notable breakthrough and is an important land mark in the growth of the administrative law. It removes the effects of the above said two earlier decisions of the Supreme Court and revises the position of law as it existed before the said Supreme Court decisions. Now the employees not only of the State but also of statutory bodies, public and local authorities can avail of the protection which Article 226 provides if they point out any violation of a delegated legislation or scheme or order or bye-law or breach of natural justice, More precisely it has been expressed that "a large number of employees who were denied access to the High Court for redressal of their grievance have now been again brought under the protective umbrella of Article 226."
6. We have taken little pains to examine the two earier decisions of the Supreme Court sought to be distinguished and the authority of which is said tc have been considerably shaken as said by the Andhra Pradesh High Court and with due deference to the learned Judges of the said Court we venture to disagree with them and take a different view. We shall presently indicate our reasons for the disagreement but before that, we would like to deal with another case of the Supreme Court referred tp in the Full Bench case presently. The Full Bench in paragraph 87 has again referred to the case of P. R. Jodh v. A. L. Pandey, (1965) 2 SCR 713 where a writ against a private college was issued, in support of their view. This case was relied upon by Mr. Setalvad appearing for the appellant before the Supreme Court in Vidya Ram's case (Supra) which was considered and distinguished by thier Lordships of the Supreme Court in some detail. In paragraph 13 of the report the contention raised on behalf of the learned Counsel that that Court had sub silentio sanctioned the issue of a, writ under Article 226 to quash an order terminating services of a teacher passed by a college similarly situated and, therefore, the fact that the College or the managing committee was not a. statutory body was no hindrance to the High Court issuing the writ prayed for by the appellant was repelled on the ground that "this Court expressly stated in the judgment that no such contention was raised in the High Court and so it cannot be allowed to be raised in this Court. Apart from that on the facts also the case of P. R. Jodh is quite distinguishable. There a lecturer who was dismissed by the Governing Body of a College affiliated to the Saugor University challenged the dismissal on the ground of violation of the rules of natural justice and sought protection of the provisions of the "College Code"."
The Supreme Court held that the provisions of Ordinance 20, known as "College Code" had the force of law and conferred legal rights on the teachers of affiliated colleges which was intra vires of the powers of the University contained in Section 12 read with Section 4 (6) of the University Act and, therefore, it was incorrect to contend that the "College Code" merely regulates the relationship between the University and the affiliated colleges. The provisions of the Code relating to the security of tenure teachers properly fell within the statutory power of affiliation granted to the University under the Act.
7. Now let us examine the case of the Sirsi Municipality v. C. K. F. Tellis, (AIR 1973 SC 855) in which the two decisions which were referred to in the case in AIR 1972 SC 1450, namely, AIR 1970 SC 1244 (Executive Committee of U. P. State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi) and AIR 1971 SC 1828 (Indian Air Lines Corporation v. Sukhdeo Rai) were considered and said to have been disapproved by the Andhra Pradesh High Court.
The case of AIR 1973 SC 855 was itself of a local authority, namely, Sirsi Municipality under the Bombay District Municipalities Act which had dismissed one of its employees without affording a reasonable opportunity of being heard which was under challenge. The question falling for our consideration, therefore, did not directly fall for any decision in this case. The two cases, namely (1) AIR 1970 SC 1244 and (2) AIR 1971 SC 1828 have no doubt been referred to in this case, but entirely in a different context and we do not find from the discussions in this case that the authority of the two earlier cases has in any way been shaken or to use the expression of the Andhra Pradesh High Court -- "have now been distinguished in a way disapproved, ......"
8. The first case of the Supreme Court in Ajit Kumar Sharma (supra), whose authority is said to be considerably shaken in the view of the Andhra Pradesh, (AIR 1975 Andh Pra 35) (FB) was a case where it was clearly held by the Supreme Court that no writ would lie against the Governing Body of an affiliated college and the employees of such a college could not seek enforcement or non-enforcement of any rule by a writ. The college in this case was a private college affiliated to the Gauhati University established under the Gauhati University Act and managed by a Governing Body according to the provisions of the Statute for the management of private colleges framed by the Gauhati University under Section 21 (g) of the Act. The Supreme Court has clearly held in this case that the Assam Aided College Employees Rules (1960) regarding Conduct and Discipline of Employees of Aided Educational Institutions had admittedly no statutory force and were framed in order to give revised grants to private colleges to enable them to give higher; scales of pay etc. to their teachers in accordance with the recommendations of the University Grants Commission. It was very clearly pointed out that where such conditions of grants-in-aid are laid down by mere executive instructions, it is open to a private college to accept those conditions or not to accept them. It was not open to a teacher to insist that the Governing Body should not carry out the instruction, and the rules for the purposes of grant-ni-aid were merely executive instructions which conferred no right of any kind on teachers and they could not apply to the High Court for a mandamus against the State for enforcement or non-enforcement of the rules, even if indirectly there might have been some effect on them because of the grant-in-aid being withheld by the State in whole or in part.
Let us now examine the other two cases, namely, Tyagi's case (AIR 1970 SC 1244) and Indian Air Lines Corporation's case (AIR 1971 SC 1828), which were referred to with approval in Vidya Ram's case (AIR 1972 SC 1450) to see if they have in any way been distinguished by way of disapproval in Sirsi Municipality's case (AIR 1973 SC 855) as said by the Andhra Pradesh High Court.
In order to appreciate the point, we shall briefly indicate the facts of the two cases and the relevant observations of the Supreme Court.
In Tyagi's case, the Warehousing Corporation had framed certain regulations, one of which dealt with the termination of the service of an employee other than by way of punishment. The complaint of Tyagi was that in the enquiry that was held by the Corporation, he was not given opportunity to adduce evidence in defence, nor the persons from whom the Enquiry Officer gathered information were tendered for cross-examination. The dismissal of Tyagi was challenged on this account as null and void. The Supreme Court held that an order made in breach of the regulation was not in breach of any statutory obligation and that violation of regulation was "a breach of terms and conditions of relationship of master and servant and the master was liable for damages for wrongful dismissal". There was an express observation that in that case there was no violation of any statutory obligation by the Corporation.
In the Indian Airlines Corporation's case the respondent having been found guilty in a domestic enquiry was dismissed, which was challenged by a suit, alleging that the enquiry had been conducted in breach of the procedure laid down by regulations made by the Corporation under Section 45 of the Act which rendered it void: The High Court had held in favour of the plaintiff, but the Supreme Court set aside the declaration with these observations:
"The employment of the respondent not being one to an office or status and there being no obligation or restriction in the Act or the rules subject to which only the power to terminate the respondent's employment could be exercised, could the respondent contend that he was entitled to a declaration that the termination of his employment was null and void ?"
The Supreme Court proceeded to consider a series of cases and then further observed;
"These decisions establish that the dismissal of a servant by statutory including local authorities or bodies in breach of the provisions of the statutes or orders or schemes made under the statute which regulate the exercise of their power is invalid or ultra vires and the principle of pure master and servant contractual relationship has no application to such cases."
In Sirsi Municipality's case, the preeminent question was whether the dismissal of the respondent was in violation of Rule 143 which was framed in exercise of power conferred on the Municipality by statute and could not be amended without the assent of the State Government, and the dismissal of the respondent was found to be in violation of the said rule of being dismissed without a reason-abe opportunity having been given of being heard in her defence. We are afraid, on reading the case of Sirsi Municipality, we do not find any such observation for the contention that the two earlier cases of the Supreme Court have been distinguished in any such way which amounted to their disapproval, as in that case the dismissal of the respondent was upheld on account of the violation of statutory rule by a public body. The Bench of the Supreme Court in this case was consisted of five Judges and although Beg, J. (who was also a member of the Bench) had concurred with the judgment of Ray, J. (now Hon'ble the C. J.) who delivered the main judgment for himself and on behalf of the other three learned Judges, in paragraph 42 has observed that he was "unable to reconcile the decision of this Court in the case (AIR 1970 SC 1244) with our view in the case before us". If the learned Judges of the Andhra Pradesh High Court have taken this observation of Beg, J., we do not think that they were right as in the main judgment, no such observation was made.
The Andhra Pradesh High Court was itself considering the case regarding the admission of a student in the First Year Integrated M. B. B. S. Course in the Medical College. In paragraph 100 of the report, they have made an apparent distinction between the case of a pure "master and servant" from the case of a teacher in an affiliated college on the ground that a pure master and servant "case may mean a case in which there is no element of public employment or ser-vice, no support by statute, nothing in the nature of an office or a status which is capable of protection", a proposition which is now well established by a long line of judicial authorities of this Court and of the Supreme Court. This propositipn was made clear by the Supreme Court in the Tyagi's case.
9. In the case before us, Mr. Kailash Roy could not point out infraction of any statutory provision having the force of law by the Governing Body, in the order terminating the services of the petitioner for which any writ could issue by this Court. Therefore, unless there was an element of public employment or service, having support of any statute, or an office or status capable of protection, no writ can be issued against respondent No. 1 simply, because it happened to be an affiliated college to the Magadh University.
10. For these reasons, it must be held that this writ application is misconceived and not maintainable. We would, accordingly, dismiss the same; but in the circumstances of the case, shall make no order as to costs.