Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18787 of 2012 ====================================================== Shambhu Nath Singh Son Of Late Bhola Singh Resident Of Mohalla- Sri Krishna Nagar, Post Office- Motihari, District- East Champaran, Presently Head Of Department Chemistry, Maharaja Harendra Kishore Intermediate College, Maharaj Nagar, Motihari .... .... Petitioner/s Versus 1. The State Of Bihar, Through The Principal Secretary, Department Of Education, Government Of Bihar, Patna 2. 2. The Bihar School Examination Board, (Higher Secondary) Budh Marg, Patna Through Its Secretary 3. The Chairman, Bihar School Examination Board, (Higher Secondary) Budh Marg, Patna 4. The Director, Higher Secondary, Bihar, Patna 5. The Sub-Divisional Office Motihari, Cum Convenor, Ad-Hock Committee, Maharaja Harendra Kishore Intermediate College, Motihari 6. The District Education Officer, East Champaran, Motihari 7. Mr. Vinay Verma, Principal Maharaja Harendra Kishore Intermediate College, Maharaj Nagar, Motihari, East Champaran .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 22-08-2013
Facts
Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows:- “1(A)(I) To declare that enhancement of age up to
Legal Reasoning
Similarly, having perused Clasue-18 of the Bye-laws laying down power and function of the school Managing Committee and particularly its Sub-clause (ix), there will be nothing left for speculation that again full power has been vested with regard to laying down service condition in the hands of the school managing committee which has to only ensure that norms given in the Act of the State and the Board regarding terms and conditions of service and other rules governed are strictly adhered to. Thus the only power that the Government or even the Board may have is that in case the School Managing committee does not follow the prescribed norms, the same amounting to violation of the terms and conditions of affiliation, may lead to only an action for the disaffiliation of the institution. In the garb of power of affiliation, the Government or the Board however cannot usurp the power of appointment and laying down service condition will lie with the employer of a private institution because that always will lie with the institution and its Managing Committee. Patna High Court CWJC No.18787 of 2012 (2) dt.22-08-2013 6 In view of above, it has to be held the writ petition will not lie before this Court as neither the Managing Committee of the Intermediate College in question nor the college itself can be held to be the “State” within the meaning of Article 12 of the Constitution of India. That being so, this writ application is wholly misconceived and is accordingly dismissed. Rishi/- (Mihir Kumar Jha, J)
Arguments
65 of respondent no.7 Mr. Vinay Verma, Principal Maharaja Harendra Kishore Intermediate College Motihari by non- existing illegal Managing Committee in its meeting held on 22.08.2010, its proposal no.9 by which the age of retirement of Principal has been extended is illegal in presence of existing ad-hock Committee and immediate removal of Mr. Vinay Verma from the post of Principal because Mr. Patna High Court CWJC No.18787 of 2012 (2) dt.22-08-2013 2 Verma has crossed the age of retirement as per age fixed by Bihar School Examination Board (Higher Secondary). As per official communiqué published in local news paper on 20.04.2012 by its communiqué no. 20/2012. (II) To hold that all act done by Mr. Vinay Verma acting as Principal after their age extension by non-existing illegal Managing Committee is illegal, erroneous and contrary to the law. (III) To hold that decision taken by non-existing Managing Committee is void. (IV) To direct the respondent authority or Vigilance to enquired about the financial irregularity done by respondent no.7 after the extension of their period as Principal.” From bare perusal of the underlined portion of aforesaid prayer, it would be clear that the petitioner virtually is questioning the decision of the Managing Committee of a private intermediate college. A writ application against such decision of the private college shall not lie as has also been repeatedly held by the Apex Court and this Court. Reference in this connection may be usefully made to a recent judgment of division bench of this court in the case of Santosh Kumar Vs. State of Bihar reported in 2013(1) PLJR 269 wherein it has 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 Patna High Court CWJC No.18787 of 2012 (2) dt.22-08-2013 3 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 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 Patna High Court CWJC No.18787 of 2012 (2) dt.22-08-2013 4 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." This Court in fact is also not impressed with the submission of the learned counsel for the Bihar School Examination Board who had tried to give some sort of semblance of an authority to the Board that in terms of Clause-16 of Chapter- V of the bye-laws framed by the State Government, the BSEB shall have the power to determine the service condition of a private intermediate college. In this regard, at least from Clasue- 16, it would be clear that it is actually the Society/Trust running the institution which has full authority to lay down any service condition and while doing so, it has to follow the norms laid down by the State Government/Board. That however will not make the Patna High Court CWJC No.18787 of 2012 (2) dt.22-08-2013 5 Board either the employer of private college or would even gives power to the Board for laying down such service condition. Nonetheless, as the petitioner has submitted that he did not challenge the authority of the Board, this issue is left undecided for the present.