Maheshwar Prasad Singh vs The State of Bihar

Mihir Kumar Jha, J.—Heard learned counsel for the parties. The relevant portion of the prayer of the petitioners in 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."

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 and Others, .

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, Biharsharif (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 and Another Vs. Rajendra Shankar Patil, but has also referred to an extract of the minutes of the 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 26.3.2008 to 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.

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:--

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 view of this court as reflected by Division Bench judgments in the case of Smt. Radha Kumari Singh Vs. The Governing Body of Mahanth Mahadevanand Mahila Mahavidyalaya and Others, and Chandra Nath Thakur and Others Vs. The Bihar Sanskrit Shiksha Board and Others, as well as a Full Bench judgment in the case of Smt. Manju Devi Vs. District Superintendent of Education, Bhagalpur and Others, does not require any reconsideration. We would, however, like to point out that earlier judgments 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 Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, is based upon distinction between private rights and duties on the 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.

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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.----"

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 and Another Vs. Rajendra Shankar Patil, 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 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.

It is only a writ of habeas corpus which can be directed not only against the State but also against a private person.

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."

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 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.

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:-

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:--

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 12.5.2012. With the aforementioned observations and liberty, this writ petition is disposed of.