Y.D. Shashtri vs State of Haryana and Others

R.P. Nagrath, J.—The petitioner has invoked the jurisdiction of this Court under Articles 226 /227 of the Constitution of India for issuance of writ of certiorari or other appropriate writ for quashing the impugned order (Annexure P-9), terminating his services. The petitioner was appointed as Sanskrit Teacher on 01.04.1986 by respondent No. 3. A notice dated 30.11.1994 (Annexure P-9) was issued to the petitioner by respondent No. 3 that while according recognition from High School to Senior Secondary School from the session 1994-1995 onwards, the Haryana Board of School Education has imposed one of the conditions to appoint and regularize the services of qualified teachers only. The petitioner was asked to intimate whether he has passed B.Ed, examination and to send copy of the said degree to the office of respondent No. 3, failing which notice (Annexure P-9) may be considered as termination with effect from 01.12.1994. The basis of petitioner''s claim was that respondent No. 3-in-situation was getting grant-in-aid from Haryana Government and thus the employees of this school are governed by Haryana Aided Schools (Security of Services) Act, 1971 and the Rules of 1974 framed thereunder.

Respondent No. 3 has contested this petition. It is stated that after issuance of Annexure P-9, the petitioner started misbehaving with the school management and the Principal. Therefore, he was issued a show cause notice dated 05.12.1994 to which the petitioner sent the reply of even date. The petitioner was relieved of his duties on 07.12.1994 after paying him one months'' salary in lieu of notice period, for his act of misbehaviour. The respondent categorically denied that the institution was receiving any aid from the Government and the said statement could not be controverted in the rejoinder filed by the petitioner.

The petitioner denied the allegation of misconduct. It is stated that the alleged termination is in violation of the principles of natural justice, as no enquiry was held into the allegations of misconduct nor any show cause notice was issued to him.

The counsel for the petitioner and respondent No. 3 have been heard and I have given my thoughtful consideration to the controversy.

It is indisputable that holding B.Ed. Degree at the time when the petitioner was appointed in the year 1986, was not insisted upon. Thereafter, the respondent-institution was granted permanent recognition upto High School by the Haryana Education Board vide letter dated 09.08.1988 (Annexure P-10). The fact of the matter is that the petitioner did not conceal his qualifications on the basis of which he was appointed in this School. It is admitted that the petitioner disclosed at the time of his appointment that he was possessing the following qualifications:-

(i) Vyakaranacharya (M.A.), Gurukul, Jhajjar;

(ii) Vidhya-Bhaskar (B.A.), Gurukul, Jawalapur;

(iii) Vidhya Ratna, Gurukul, Jawalapur;

(iv) O.T. Fail.

As Sanskrit Teacher of this school, the petitioner was being issued appreciation letters (Annexures P-3 to P-7) continuously from the Session February/March, 1987 to February/March, 1991 for his contribution, as many students of Middle/Matric of the school stood on the merit list of Haryana School Education Board. He was even authorized to officiate as Principal in the absence of then Principal, Smt. Kanta Pruthi vide authorization order dated 01.09.1991 (Annexure P-8) by President of Managing Committee in the manner that he could sign all the documents/papers.

In view of the above fact, it was strenuously argued for the petitioner that respondent No. 3 was not obligated to terminate the services of the petitioner for not fulfilling the conditions of appointment of a teacher for according recognition for Senior Secondary School. The respondent-institution was supposed to comply with the said condition for recognition only for future appointments. The institution had appointed the petitioner in the year 1986, fully knowing the qualifications, which he possessed.

M.S. Mudhol and Another Vs. S.D. Halegkar and Others, , was a matter arising out of a petition for writ of quo warranto and that too where the post of Principal was aided by the Government, and cannot be helpful to the petitioner.

In my view the basic question would be whether the writ lies for certiorari or mandamus to direct unaided private institution to take back the petitioner in service after the petitioner has remained out of job for a period of about 18 years. In Smt. J. Tiwari Vs. Smt. Jwala Devi Vidya Mandir and Others, the matter arose before the Hon''ble Supreme Court out a decree of the civil Court, where somewhat similar proposition arose. The Hon''ble Supreme Court held as under:-

We are unable to accept the contention strenuously advanced before us by the appellant''s learned counsel that respondent 1 is a public body or a statutory authority and therefore the appellant would be entitled to obtain a declaration that she continued to be in the service of respondent 1 since the order terminating her services has been found to be unlawful. The regulations of the University or the provisions of the Education Code framed by the State Government may be applicable to respondent 1 and if the provisions thereof are violated by respondent 1, the University may be entitled to disaffiliate the institution and the Government may perhaps be entitled to withdraw the educational grant payable to the institution. That does not, however, mean that respondent No. 1 is a public or statutory body. Respondent No. 1 is a private institution which is registered under the Societies Registration Act 1860. It was established by one Nand Lal, a retired Deputy Collector, who names it after his wife Smt. Jwala Devi. The Society was established for the purpose of managing the institution.

In that case there was a clause in the agreement which conferred power on the Committee of the Institution to dismiss the Principal or the Headmistress on the ground of insubordination, deliberate neglect of duty, serious misconduct and the commission of an act which constitutes a criminal offence. There was also a condition that before giving the notice of termination to the Principal the Society was to consult the inspectress of the school and the notice of termination should only be valid if the inspectress approves of it. With these facts, the Hon''ble Supreme Court held as under:-

We may further assume that since this procedure was not followed by the Society, the order terminating the appellant''s service is unlawful. But the appellant is an a employee of private institution and their mutual rights and obligations are governed by the terms of the contract, Exhibit 1, which was entered into by them in 1953. Since under those terms the appellant''s services were liable to be terminated on three months'' notice, all that she would be entitled to, even if the dismissal is wrongful, is a decree for damages and not an order of reinstatement or declaration that notwithstanding the termination of her services she continued to be in service...............

The judgment directly applicable to the present controversy is Executive Committee of Vaish Degree College, Shamli and Others Vs. Lakshmi Narain and Others, .. The respondent-institution was a Degree College managed by a registered society. A suit was filed against the college by dismissed principal for reinstatement. It was contended that the Executive Committee of the college, which was registered under the Cooperative Societies Act and affiliated to Agra University (subsequently to Meerut University), was a statutory body. The importance of this contention lay in the fact that in such a case reinstatement could be ordered if the dismissal is in violation of statutory obligation. But the Hon''ble Supreme Court refused to accept the contention. It was observed that the management of the college is not a statutory body since not created by or under a statute. It was emphasized that an institution which adopts certain statutory provisions will not become a statutory body and the dismissed employee cannot enforce a contract of personal service against a non-statutory body.

The above principle was followed in the Dipak Kumar Biswas Vs. Director of Public Instruction and Others, . There again a dismissed lecturer in a private college was seeking reinstatement in service. The Hon''ble Supreme Court refused to grant the relief although it was found that the dismissal was wrongful. The Hon''ble Supreme Court instead granted substantial monetary benefits to the lecturer. That is the preponderant of judicial opinion because of the common law principle that a service contract cannot be specifically enforced. The matter there arose out of a civil suit instituted by the appellant.

The petitioner''s counsel has also relied upon Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, , which would not support the petitioner as the retrenched persons were not agitating for their continuance in the service. It was rather held that 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 would not lie.

Mohit Garg v. Army Institute of Law, Sangrur Road, Patiala through its Director, 2000 (4) S.C.T. 380 : (2000) 3 RSJ 672 and Kavita Vs. Daya Nand Medical College and Hospital, were the petitions relating to admissions in the law course and MBBS course against privately managed colleges/institutions and for that matter the institutions were found to be performing the public duty in providing legal and medical education and the writ petitions were held to be maintainable, and thus dealing with a different proposition.

The law on the subject has been extensively dealt with by this Court in Mrs. K. Naqvi Vs. State of Punjab and Others, . That was a case of termination of services of a teacher, by a privately managed unaided institution. It was held as under:-

............... However, if an office/post is essentially of a private character, neither a writ in the nature of certiorari to quash the order of termination nor a mandamus to order reinstatement would lie to secure the performance of obligations by a body towards its employees or to resolve a private dispute. Similarly, if the relationship between the employer and the employee is based on contract and was purely one of Master and Servant, the relief of reinstatement cannot be granted as it would amount to granting specific performance of contract of service which is prohibited in law. Still further, a private institution even if recognized or affiliated with a statutory body like University, though purely private in character being a Society registered under the Societies Registration Act, 1860, no declaration of continuation in service can be granted in favour of its employee even if the termination of employment is found to be unlawful though in such a case, the affiliating statutory authority like University might be entitled to disaffiliate the institution but the relief of reinstatement to an employee into service has not been recognized.

The employment of teachers or other staff on certain terms and conditions, administration of such teachers/staff through a set of self evolved Rules/Regulations of the private body without any protective umbrella of State or Statute at the best confer rights which are purely of private character and any infringement or breach of such rights cannot be corrected through a writ of mandamus............

Applying the aforementioned principles to the facts and circumstances of the present case, it is seen that Yadvindra Public School Association is a Society registered under the Societies Registration Act, 1860. The Respondent-school run by the said Society does not receive any grant in aid from the State Government. In fact, it has not even been recognised by the Government of Punjab. The Society manages its affairs from its own funds and has framed own Regulations to govern the service conditions of its employees. There is no statute or government order granting any direct or indirect protection to the employees including the teachers of the Respondent-school. It is a private body and the relationship between the Petitioner and the Respondent-school is purely that of Master and Servant. In my view, the Respondent-school shall certainly be amenable to the writ jurisdiction of this Court so far as its activities in relation to public duty of imparting education are confined. However, no writ can be issued to the Respondent-school or its management in relation to the terms and conditions of service of the employees or any breach thereof. No writ, therefore, can be issued either to quash the order of termination dated 25th March, 1996 (Annexure P-12) nor can the Respondent-school be commanded by way of a writ of mandamus to reinstate the Petitioner into service.

Ram Parkash Kaushal v. Punjab University and others, 2005 (4) S.C.T. 199 : 2005 (4) RSJ 529, was a case against respondent-college, which was an unaided institution. It was not receiving any grant-in-aid either from the State of Punjab or from Panjab University, to which it was affiliated. This Court held that mere affiliation of the college to the University would not make it amenable to writ jurisdiction under Articles 226 /227 of the constitution of India. It was further held that writ petition would, however, be maintainable for enforcement of constitutional or statutory legal rights. In view of the above, the writ petition does not lie against respondent No. 3 for certiorari for the impugned notice or for mandamus to reinstate the petitioner in service.