Jagdish Narain vs Union of India (UOI) and Others

Sudhir Agarwal, J.—Heard Sri S.C. Kushwaha for the Petitioner and Sri H.N. Pandey for the Respondents and perused the record.

The Petitioner is a teacher in a private institution namely Sarswati Vidya Mandir, Senior Secondary School, Etah which is affiliated to Central Board of Secondary Education and having been terminated by the Management of the Institution, has preferred the present writ petition.

Sri H.N. Pandey, learned Counsel appearing for the Respondents has raised preliminary objection that the writ petition is not maintainable and has placed reliance on a Full Bench decision in M.K. Gandhi and Ors. v. Director of Education (Secondary U.P., Lucknow and Ors. 2006 (62) ALR 27 as also the Apex Court decision in appeal taken up from that judgment as Civil Appeal No. 339 of 2007, Committee of Management, Delhi Public School and Anr. v. M.K. Gandhi and Ors. decided on 16th August, 2007 which both have been referred to in Smt. (Dr.) Deepa Agarwal v. State of U.P. and Ors. in Writ Petition No. 29743 of 2009 decided on 11th June, 2009.

Learned Counsel for the Petitioner placed reliance on a Division Bench decision in Sandeep Chauhan and Ors. v. State of U.P. and Ors. in Special Appeal No. 757 of 2001 decided on 11th July, 2001. He also relied on another decision in Sanjai Kumar Sharma v. Central Board of Secondary Education and Ors. Special Appeal No. 956 of 2006 decided on 11th September, 2006 but a bare perusal thereof shows that in the aforesaid judgments, the decisions of Full Bench and Apex Court, noticed above, have not been noticed by the Division Bench and both the aforesaid decisions have been rendered without looking to the said two decisions which are binding on this Court being the judgments of not only the larger Bench but of the Apex Court also. Moreover, the facts in the aforesaid judgments would make it clear mat the institution were not the private institution but it was an institution of the Air Force and this Court came to the conclusion that considering the facts and circumstances of such an institution, it cannot be held that such an institution is not a State under Article 12 of the Constitution of India which is not the case in hand.

In the case in hand, admittedly, the institution in which the Petitioner was employee is a private institution which do not come within the ambit of ''State'' under Article 12 of the Constitution of India. The following extract of the judgment in the case of Sanjai Kumar Sharma (supra) makes a difference between the institution involved in the case of Sanjai Kumar Sharma (supra) and the present one:

The Education Code handed up to us, which has been framed by the Chairman of the Board of Governors of the Indian Air Force Education and Cultural Society, bears the emblem of the Indian Air Force on its top cover. Chapter 8, Rule 9 of the said book deals with how the finances are received, grant in aid as well as interconnection with other service institution funds, is mentioned.

So far as Division Bench decision in Sandeep Chauhan (supra) is concerned, since the matter is covered by the Full Bench decision as also Apex Court judgment dated 16th August, 2007, this Court is bound by the decision of the larger Bench as well as the Apex Court. It would be appropriate to quote para 2 of my judgment in Smt. (Dr.) Deepa Agarwal (supra) wherein the details of the decisions observed by the Apex Court has been quoted which reads:

In M.K. Gandhi and Ors. v. Director of Education (Secondary) U.P., Lucknow and Ors. 2006(62) ALR 27 it has been held that such a writ petition is not maintainable. In the Civil Appeal No. 339 of 2007, Committee of Management, Delhi Public School and Anr. v. M.K. Gandhi and Ors. preferred against the said judgment of this Court, the Apex Court in its judgment dated 16.8.2007, while confirming the view of this Court, has further held that no direction can be issued to C.B.S.E. interfering with the termination of Teachers and held as under:

When the Allahabad High Court has already held that the D.P.S. School is not a State within the meaning of Article 12 of the Constitution of India and the writ petition is not maintainable, there was no necessity for giving a direction to the C.B.S.E. which virtually amounts to granting a declaration in favour of those teachers whose services have been terminated. We fail to appreciate the view taken by the Allahabad High Court by unnecessarily complicating the issue by involving the C.B.S.E. for a private dispute between the teachers and the D.P.S. The Allahabad High Court should have stop short of holding that the said D.P.S. is a private body and the writ is not maintainable. Hence, we are of the view that no writ is maintainable against a private school as it is not a ''State'' within the meaning of Article 12 of the Constitution of India and no direction could have been given by the High Court to the C.B.S.E. for interfering with the termination of the teachers. The proper remedy for the teachers was to file a civil suit for damages, if there was any. Consequently, we allow this appeal and set aside the order passed by the Allahabad High Court to the extent of giving a direction to the Board. There will be no order as to costs.

So far as the decision in Special Appeal No. 611 of 2008, Union of India and Ors. v. Somendra Gupta and Ors. relied by the learned Counsel for the Petitioner is concerned, therein in paras 10 and 11 of the judgment, the Division Bench clearly has held as under:

Learned Single Judge will therefore decide the question of maintainability of the petition as to whether the Society concerned is a State and whether the petition is maintainable, and if so maintainable, will decide as to whether on facts the Respondent Nos. 1 to 4 are entitled to the relief claimed for.

In view of the aforesaid facts and circumstances the appeal is allowed. The petition will go to the file of the Single Judge. We request him to decide it at the earliest. We make it clear that this Court has not given any finding one way or the other as to whether the Society is a State or it is not.

In view of the Full Bench decision of this Court the Petitioner working in a private institution, which is not a "State" with the meaning of Article 12 of the Constitution of India, I find no option but to hold that this writ petition is not maintainable. Admittedly the institution, in which the Petitioner was employee, is a private institution and is not financed in any manner or otherwise is controlled by the Central Board of Secondary Education nor is receiving grant-in-aid from the State Government or Central Government or the Government or its authority play any role except to the extent that recognition is being granted for holding examination of Secondary classes.

The writ petition is accordingly dismissed as not maintainable.