LT. (DR.) JAGAT NARAYAN THAKUR v. THE STATE OF BIHAR

and learned counsel for the State.

2. No one appears for the Bheem Rao Ambedkar Bihar University.

3. The prayer of the petitioner in this writ application reads as follows:- "For issuance of writ in the nature of mandamus to direct the respondent concerned to pay the arrears and other allowances to the petitioner as per a regular teacher of the college. For issuance of writ in the Patna High Court CWJC No.18355 of 2012 (3) dt.05-08-2013 2 nature of mandamus to direct the respondent concerned to grant the petitioner all the benefits attached to an Associate National Cadet Core Officer in accordance with the rules and regulation of National Cadet Core (NCC)."

4. Mr. Siyaram Sahi, learned counsel for the petitioner has submitted that since, the petitioner has been working in Sri Krishna Jubilee Law College, Muzaffarpur (hereinafter referred to as the College) affiliated to the Bheem Rao Ambedkar Bihar Bihar University and is a very old institution which being established in the year 1948 had been also affiliated to Patna University since 31.12.1951, he cannot be denied his payment of salary by the Governing Body of the affiliated College. He has also submitted that though the College is not a Government aided institution but then as it is involved in discharging of public duty such directions for payment of salary keeping with view the judgment of Apex Court in the case of Sri Anadi Mukta Sadguru Sri Mukta Jee vs the State reported in AIR 1989 SC 1607 can be issued by this Court even to the Governing Body of the affiliated College.

5. Learned counsel for the State on the other hand has submitted that the college of the Patna High Court CWJC No.18355 of 2012 (3) dt.05-08-2013 3 petitioner is out and out a private college on which neither the Government nor the University has effective control and therefore the Governing Body of the College being not a State within the meaning of article 12 of the Constitution of India, no writ would lie against a governing body.

6. The issue that a writ petition will not lie against a Governing Body of an affiliated college has been well settled in the Full Bench judgment of this Court in the case of Smt. Manju Devi vs the District Superintendent of Education, Bhagalpur & Ors, reported in 1987 PLJR 962 and in the two Division Bench judgments of this Court in the case of Srimati Radha Kumari Singh @ Radha Kumari vs. the Governing Body of Mahanth Mahadevanand Mahila Mahavidyalay & Ors 1977 PLJR 110 and Chandra Nath Thakur vs. Bihar Sanskrit Shiksha Board & Anr. 1999 (1) PLJR 529. In fact all these judgments were considered in a recent Division Bench judgment dated 05.10.2012 in the case of Santosh Kumar vs the State of Bihar & Ors (C.W.J.C No. 10530 of 2009), wherein, it was 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 Patna High Court CWJC No.18355 of 2012 (3) dt.05-08-2013 4 college imposes exercise 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 maintainable as there was no allegation of infraction of any statutory provision. In a given statutory powers the University granting affiliation to a private reasonable college conditions governing teachers or employees affiliated college, then in case of violation of Statues or Rules of the affiliated University having college a corresponding 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 jurisdiction. The law laid down by the Apex Court in the case Shri Anadi Mukta Sadguru Shree Muktajee Jayanti Vandasjiswami 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 established by a long line of precedents that writ jurisdiction person Suvarna relief side. It Patna High Court CWJC No.18355 of 2012 (3) dt.05-08-2013 5 remedy matters provides 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 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."

7. That however does not mean that the petitioner will have no remedy against Governing Body/Adhoc Committee of the College. In the condition of service there is a statute framed by the Chancellor with the heading "Number, Grades, Qualification, Pay scale and other condition of service of teachers of Admitted Colleges regulation University". Under clause-19 of the Statute however a right has been vested in the teachers of the admitted College to make a representation Patna High Court CWJC No.18355 of 2012 (3) dt.05-08-2013 6 regarding condition of service which has to be considered by the Syndicate, inasmuch as, the Syndicate has been vested with power to cancel any order or to quash any proceeding of the Governing Body of the College or pass any order affecting the condition of service of any such teacher. Clause-19 of the statute being relevant is also quoted hereinbelow:- “19. (1) Every teacher of an admitted college shall have the right to make representation, regarding his conditions of service, covered by the laws of the University, to the Governing Body through the Principal of the college concerned and to send a copy of the representation direct to the Syndicate. (2) The Syndicate may, whether the said representation consideration by the Governing Body of the college concerned or not, cancel any order or quash any proceedings of the governing Body of the college or pass any order affecting the conditions of service of any such teacher, provided that before taking action under this clause, the Syndicate shall call upon the Governing Body concerned to state why the order or proceedings should not be set aside or quashed and if any statement a reasonable time allowed for the purpose, the Syndicate shall consider the same and pass necessary orders, which shall be final. (3) The Syndicate shall from time to time satisfy itself, by enquiry of otherwise, that the conditions of service of teachers of admitted colleges are being properly enforced and adhered to in the admitted colleges; and may from time to time if necessary, make statutes for better regulating the condition of service.” received within Patna High Court CWJC No.18355 of 2012 (3) dt.05-08-2013 7

8. Thus when payment of salary of the petitioner is his service condition he can take recourse of the aforesaid provisions of the statute by initially moving the Governing Body/Adhoc Committee and thereafter before the Syndicate of the University.

9. With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J)