Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14642 of 2013 ====================================================== Ram Prakash Yadav S/O Late Horil Yadav R/O Village - Barsa, P.O. Ghuskuri, P.S. Ariari, District - Shekhpura .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary, Human Development Department, Government Of Bihar, Patna 2. The Director, Higher Education Department, Government Of Bihar, Patna 3. The Vice - Chancellor, Veer Kuwar Singh University, Bhojpur At Ara 4. The Registrar, Veer Kuwar Singh University, Bhojpur At Ara 5. The Secretary, Governing Body Of Mahatma Gandhi College, Laharabad, Piro, District - Bhojpur At Ara 6. The Principal, Mahatma Gandhi College Laharabad, Piro, District - Bhojpur At Ara 7. Ashok Kumar Singh R/O At And P.O. Bamhaur, P.S. Piro, District - Bhojpur At Ara, At Present Working As Lecturer In Hindi Department, College, Laharabad, Piro At Arah .... .... Respondent/s ====================================================== Appearance: For the Petitioner : Mr. Mukesh Kumar Singh, Advocate Mr. Manoj Kumar, Advocate For the Respondents : Mr. P. Tekriwal (GA-1) Mr. Sarvadeo Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 06-08-2013
Facts
Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows:- “1(i) To quash the memo no- 917/estab/12 dated 22.09.2012 by which the Registrar, Veer Kuwar Singh University, Ara has forwarded the enquiry report of three men committee, so far it related to the petitioner, to the Director, Higher Education, H.R.D. Department, Patna stating therein that the petitioner was already removed by the Managing Committee of the Mahatma Gandhi College, Patna High Court CWJC No.14642 of 2013 (2) dt.06-08-2013 2 Laharabad, Piro, District- Bhojpur at Ara by the decision dated 15.12.94 on the ground of cheating, forgery and other, and vide letter no. 1665 dated 26.02.98 the then Bihar College Service Commission, Patna has not approved the service of petitioner. (ii) To direct the respondent authorities to pay the grant-in-aid to the petitioner which has been allotted to the Governing Body of Mahatma Gandhi College, Laharabad, Piro, District- Bhojpur at Ara by the Human Resources Department in 2008 and 2009 to distribute among the teaching and non-teaching staff of the Mahatma Gandhi College, Laharahad, Piro, Bhojpur. (iii) To direct the respondents to recover the grant-in- aid from the respondent no-7 who has been illegally paid the grant-in-aid by the Secretary and Principal of the Mahatma Gandhi College, Laharabad, Piro, District Bhojpur at Ara. (iv) To direct the respondents to not disturb the petitioner from discharging his duty who has been appointed as lecturer in Hindi department by Governing Body of the Mahatma Gandhi College, Laharabad, Piro, District- Bhojpur at Ara in 1980.” Learned counsel for the petitioner in support of the aforementioned prayer has submitted that the University while holding enquiry and reporting the matter to the Director, Higher Education has committed an error in holding that the petitioner was a terminated employee of Mahatma Gandhi College Patna High Court CWJC No.14642 of 2013 (2) dt.06-08-2013 3 Laharabad, Piro (hereinafter to be referred to as ‘the College’). He has submitted that there is unimpeachable evidence to show that the petitioner is still working as a Teacher of the aforesaid college and he would be entitled for payment of salary which has been released by the State Government by way of grant. In the considered opinion of this Court, when the University in the enquiry report has only recorded a finding of fact reading as follows:- ^^…7‰ jke izdk”k ;kno] O;k[;krk fgUnh foHkkx& fu;qfDr frfFk 22-06-80 gS] budh lsok gsjk Qsjh] /kks[kk/kM+h ,oa tkylkth ds vkjksi esa lfpo dk i=kad 53 fnukad 28- 01-93 rFkk i=kad& 85 fnukad& 08-09-94 ,oa iz0 izkpk;Z dkes”oj izlkn flag ds i=kad& 41 fnukad& 20-03-94 ds vkyksd esa “kklh fudk; dh cSBd fnukad& 15-12-94 dh dk;Zokgh iqfLrdk esa izLrko la0& 02 ds }kjk budks lsok ls eqDr dj fn;k x;k gSA lkFk gh fcgkj dkWyst lsok vk;ksx dk i=kad& 1665 fnukad& 26-02-98 ds }kjk jke izdk”k ;kno ds vLFkk;h lgefr dks Lohd‘r dj fn;k x;k rFkk buds LFkku ij iz/kkukpk;Z ds vuqlkj fLerk tSu dks fu;qDr fd;k x;k gS vkSj bUgsa 15 o’kksZa ls egkfo|ky; ls vuqifLFkr n~”kkZ;k x;k gSA blfy, jkT; ljdkj ls izkIr vuqnku ls Hkqxrku ugha fd;k x;k gSA** it has only given the reasons of non-payment of salary on account of his alleged removal from the services of the college way back in 1994. The petitioner admittedly is an employee of a private college which is only affiliated to the University and the Patna High Court CWJC No.14642 of 2013 (2) dt.06-08-2013 4 University has got no administrative control in terms of Section 59 of the Bihar State University Act. The findings, therefore, that the petitioner was removed by the Governing Body of a private college on 15.12.1994 and that he was replaced by one Smita Jain is absolutely between the petitioner, the Governing Body and Smita Jain. None of them are amenable to the writ jurisdiction nor this Court is going to examine the decision of the Governing Body with regard to alleged removal of the petitioner. Reference in this connection may usefully be made to the division bench judgment
Legal Reasoning
of this Court in the case of Santosh Kumar vs the State of Bihar & Ors (C.W.J.C No. 10530 of 2009), wherein it had been held as follows:- "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 judgements in the case of Smt. Radha Kumari Singh (supra) and Chandra Nath Thakur (supra) as well as a Full Bench judgement in the case of Smt. Manju Devi (supra) does not require any reconsideration. We would, however, like to point out that earlier judgements 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 Patna High Court CWJC No.14642 of 2013 (2) dt.06-08-2013 5 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 Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smark Trust and Others (supra) 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. In the facts of the case, we are of the considered view that no writ can be issued to grant
Decision
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." If the University therefore has only reported the reason for non-payment of grant released by the State Government to the Director, Higher Education, this Court does not find any error in Patna High Court CWJC No.14642 of 2013 (2) dt.06-08-2013 6 the same inasmuch as it is based only on the decision on the Governing Body of a private affiliated college. That being so, this application is wholly misconceived and is, accordingly, dismissed. The dismissal of this writ application will not stand in the way of the petitioner in filing an appropriate civil suit for seeking relief against the Governing Body and in case the petitioner succeeds in such suit, he will be definitely also eligible for release of grant which was illegally withheld on the ground of removal of the petitioner. Rishi/- (Mihir Kumar Jha, J)