Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18999 of 2013 ====================================================== Kamlesh Singh S/O Late Parshuram Singh Resident Of Village- Khanethi, P.O- Khanethi, P.S- Sonha, Distt- Kaimur At Bhabhua. .... .... Petitioner Versus 1. The State Of Bihar Through The Secretary, Education Department Of Bihar, Patna. 2. The Bihar School Examination Board (Higher Secondary), Through Its Secretary, Budha Marg, Patna, Bihar. 3. The Chairman, Bihar School Examination Board (Higher Secondary), Budha Marg, Patna. 4. The Governing Body Of Bhupesh Gupta Inter College Ram Lal Nagar, Bhabhua, District- Kaimur Through Its Secretary. 5. Shri Ram Lal Singh, Secretary, Governing Body Of Bhupesh Gupta Inter College Ram Lal Nagar Bhabhua, District- Kaimur At Bhabhua. 6. Sanjay Kumar Singh S/O Sri Ram Lal Singh Principal Incharge, Bhupesh Gupta Inter College, Ram Lal Nagar Bhabhua, District- Kaimur .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Satish Chandra Mishra, Adv. Mr. Braj Kishore Singh, Adv. For the State : Mr. Md. Naushaduzzoha, AC to SC18 For the B.S.E.B. : Mr. Piyush Lal, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 13-11-2013 Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “Set aside the order dt. 23.8.2013 contained in memo no.- 5065 dt. 29.8.13 Chairman, Bihar School Examination Board (Higher Secondary) Budha Marg, Patna whereunder and whereby the petition of the petitioner which was filed in the light of order dt. 22.3.12 passed in CWJC No. 5577/2013 has been rejected and further for a direction upon the respondents to treat the petitioner as Principal of B.G.Inter College, Ram Lal Nagar Bhabhua.” Patna High Court CWJC No.18999 of 2013 (2) dt.13-11-2013 2 Learned counsel for the petitioner while assailing the impugned order passed by the Chairman of the Bihar School Examination Board has concentrated that once the authority had come to a finding that the Managing Committee of the Intermediate College was not properly constituted, he had to necessarily also hold that the removal of the petitioner from the school in question on the post of Principal was unjustified.
Legal Reasoning
direction given by this Court in the earlier writ petition filed by the petitioner being C.W.J.C.No. 5577/2013, relevant portion whereof reads as follows: “The petitioner submits that he was regularly performing Patna High Court CWJC No.18999 of 2013 (2) dt.13-11-2013 3 the work of Principal of Bhupesh Gupta Inter College, Ramlal Nagar Bhabhua in the district of Kaimur since 2006 but the Governing body by its decision dated 13.1.2013 had removed him from the post of Principal of the College. The petitioner submits that the aforesaid decision of the Governing body is in teeth of notification no.31/12 dated 21.9.2012, as contained in Annexure 4. The petitioner further submits that he has preferred a representation against his removal, as would be evident from Annexures 11 and 12. In the facts and circumstances of the case, I direct the respondents to dispose of the representation of the petitioner in accordance with law within six weeks from the date of receipt/ production of a copy of this order after hearing the parties concerned. With the aforesaid observations and directions, this writ
Arguments
Mr. Piyush Lal, learned counsel appearing on behalf of the Bihar School Examination Board, on the other hand, while supporting the impugned order has submitted that the Board has no administrative/ disciplinary control over the service matters of a private institution and the petitioner is out and out an employee of the private institution and as such, whether his services were rightly or wrongly terminated by the Managing Committee could not have been adjudicated by the Chairman of the Board. To that extent he has also referred to the provisions made in the regulation of the Board. In the considered opinion of this Court the Chairman of the Board was under obligation to pass an order since there was a
Decision
application stands disposed of.” As would be apparent the petitioner had moved this Court on a primal grievance of termination of his service. The remedy, therefore, by way of representation to the Chairman of the Board was itself wholly misconceived. In that view of the matter, the order passed by the Chairman of the Board reading as follows: ^^lEcn~/krk mifof/k 2011 ds vuqlkj lfefr dks izkpk;Z cukus dk vf/kdkj ugha gSa blfy, lfefr dh lykg gS fd lEcn~/krk mifof/k&2011 ds vuqlkj egkfo|ky; dks fucaf/kr VzLV@lkslkbZVh ds varxZr LFkkfir dj fu;ekuqlkj izca/ku lfefr dk xBu djsa rFkk iz/kkukpk;Z ds fookn ds laca/k es a leqfpr fu.kZ; ysdj ’kh?kz lfefr dks lqfpr djsaA** Patna High Court CWJC No.18999 of 2013 (2) dt.13-11-2013 4 is only the manner in which the petitioner’s representation could have been disposed of. By-now it is well settled that an employee of a private institution merely recognized for the purposes of holding examination even if the Governmental aid for payment of salary cannot invoke the writ jurisdiction for enforcement of his service condition. Reference in this connection may be usefully made to the judgment of this Court in the case of Santosh Kumar Vs. State of Bihar & Ors., reported in 2013(1) PLJR 269, wherein it was held as follows: “15. In view of discussions made above and after noticing the various authorities citied 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 (1977 PLJR 110) and Chandra Nath Thakur [1999(1) PLJR 529] as well as a Full Bench judgment in the case of Smt. Manju Devi (1987 PLJR 962) 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 (1977 PLJR 110), 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 Patna High Court CWJC No.18999 of 2013 (2) dt.13-11-2013 5 college, then in case of violation of Statutes 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 Vandasji-Swami Suvarna Jayanti Mahotsav Smarak Trust and Others (AIR 1989 SC 1607) 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.” As a matter of fact once this Court would find that the petitioner is virtually claiming restoration to the post of Principal of a private College, it has to be essentially held that this writ petition itself will not lie before this Court. That apart the control which has been given by the Bihar School Examination Board in terms of Bihar School School Patna High Court CWJC No.18999 of 2013 (2) dt.13-11-2013 6 Examination Board (Senior Secondary) Affiliation By-laws Notification in the official gazette itself does not envisage any control over the service conditions of the institutions recognized by the Bihar School Examination Board primarily for the purposes of holding examination. The Board in fact has a very limited role in the matter of constitution of the Managing Committee and there also only to the extent of only nominating two of its Member as has been also notified in the Press Communiqué, contained in Annexure 4, relevant portion whereof reads as follows: ^^fcgkj fo|ky; ijh{kk lfefr AmPp ek/;fedA cqn~/k ekxZ iVuk foKfIr la[;k&31@2012 fcgkj baVjfefM,V f’k{kk ifj"kn~ AfujflrA ls izLohd‘fr@ekU;rk izkIr jkT; ds lHkh baVj egkfo|ky;ksa@fo|ky;ksa ds izca/kuksa@izkpk;ks Za@izHkkjh izpk;ks Za ds fy, vko’;d funs’k loZfofnr gS fd fcgkj baVjfefM,V f’k{kk ifj"kn dk fujlu fcgkj baVjfefM,V f’k{kk ifj"kn fujlu vf/kfu;e 2007 ds rgr gks pqdk gS rFkk bldk foy; fcgkj fo|ky; ijh{kk lfefr esa fcgkj fo|ky; ijh{kk lfefr Ala’kks/kuA vf/kfu;e 2007 ds vkyksd esa dj fy;k x;k gSa blds lkFk gh fcgkj baVjfefM,V f’k{kk ifj"kn vf/kfu;e 1992 ,oa ifj"kn fu;ekoyh 1994 Hkh fujflr gks pqdh gS rFkk fcgkj fo|ky; ijh{kk lfefr lEcn~/krk mifof/k 2011 izHkkoh gks x;h gSA ifj"kn~ AfujflrA ls izLohd‘r@ekU;rk izkIr lHkh baVj egkfo|ky;ksa@fo|ky;ksa esa iwoZ esa xfBr izca/ku lfefr@’kklh fudk;@rnFkZ lfefr dh vof/k Hkh izk;% lekIr gks x;h gS ftlls baVj egkfo|ky;ksa@fo|ky;ksa dks lqpk: :i ls lapkyu esa dkQh fnDdrsa vk jgha gSaA vr,o fcgkj fo|ky; ijh{kk lefr la’kks/ku vf/kfu;e 2011 dh /kkjk&08 esa fy;s x;s izko/kku ds rgr lfefr dh fnukad 06 vxLr 2012 dh cSBd es fy;s x;s fu.kZ;kuqlkj ifj"kn AfujflrA ls Patna High Court CWJC No.18999 of 2013 (2) dt.13-11-2013 7 izLohd‘fr@ekU;rk izkIr lHkh bavj egkfo|ky;ksa@fo|ky;ksa ds izca/kuksa@izpk;ks Za@izHkkjh izpk;ks Za dks fuEukafdr funs’k fn;k tkrk gSA …1‰ lEcn~/krk mifof/k 2011 ds v/;k;&AA dh /kkjk 3…01‰(iv) esa fofgr izko/kku ds vuqlkj Hkkjr ljdkj ds lkslkbZVh jftLVsz’ku vf/kfu;e 1860 ds varxZr vFkok jkT; ljdkj ds vf/kfu;eks a ds v/khu xSj ljdkjh laLFkk ds }kjk LFkkfir ’kS{kf.kd nkrO; ;k /kkfeZd lfefr;ksa (Charitable Religious Society) ds :i esa vFkok U;kl (Trust) ds varxZr egkfo|ky;@fo|ky; dks LFkkfir djsaxsA …2‰ lecn~/krk mifof/k 2011 dh v/;k;&V dh /kkjk&17 esa fofgr izko/kkukss ds varxZr egkfo|ky;@fo|ky; esa izca/ku lfefr dk xBu …nks lnL;kas dk LFkku cksMZ }kjk ukfer gksus gsrq fjDr j[krs gq,‰ dj vf/kd‘r ,d ekg ds Hkhrj lfefr (Board) dks lalwfpr djuk lqfuf’pr djsaxsA rnqijkUr cksMZ }kjk nks lnL;ksa dk uke ukfer gksus ij mls egkfo|ky;@fo|ky; }kjk ’kkfey fd;k tk;sxkA lHkh baVj izLohd‘r egkfo|ky;ksa@fo|ky;ksa esa xfBr iwoZ dh izca/ku lfefr@’kklh fudk;@rnFkZ lfefr bl foKkiu dh izdk’ku dh frfFk ds nks ekg ds ckn Lor% lekIr le>h tk;sxhA …3‰ egkfo|ky;@fo|ky; eas mi;qZDr funs’kksa dk vuqikyum ugha dj euekus <ax ls pykus ds QyLo:i fdlh Hkh izdkj dk fookn mRiUu ugha gkus ij lEcn~/krk mifof/k dh /kkjk&15 esa fofgr izko/kkuks a ds varxZr dkjZokbZ dj izLohd‘fr@lEcn~/krk okilh dh dkjZokbZ dh tk,xh ftldh tckonsgh egkfo|ky;@fo|ky; izca/ku dh gksxhA**a From the reading of the aforesaid Press Communiqué which is only in the line with the provision under Regulation 17 reading as follows: “17. School Managing Committee, Its Constitution, Power and Functions.- (1) Schools other than Government schools affiliated with the Board shall have a school Managing Committee. (2) The School Managing Committee should consist of Patna High Court CWJC No.18999 of 2013 (2) dt.13-11-2013 8 the following as per Board’s norms:- (a) the Managing Committee of a recognized aided school shall consist of not more than fifteen members; and the Managing Committee of a private unaided school shall consist of not more than twenty one members; (b) subject to the total number of members specified in clause (a), every managing Committee shall include the following namely:- (i) the Head of the school. He will be a member Secretary of the School Managing Committee; (ii) two parents of students in the school; (iii) two teachers of the schools; (iv) two other persons (of whom one shall be women); who are, or have been teachers of any other school or of any college, to be nominated by the Trust/ Society/ Board. (v) two members, from out of a panel recommended by the Trust/ Society to be nominated by the Board. If the panel is not accepted fresh panel may be asked. The names recommended should not below the rank of a Principal of a Sr. Sec. School; (vi) the remaining members to be nominated or elected, as the case may be, in accordance with the rules and regulations of the Society or trust by which the school is run. (vii) No Head Master/ Principal shall be appointed in the school who is related to any member of the school Managing Committee. For the purpose of this rule, the relation includes the following- Patna High Court CWJC No.18999 of 2013 (2) dt.13-11-2013 9 Brothers, Sisters, Husband, Wife, Son, Daughter, Son in- law/daughter in-law. Provided further that the above provisions shall be implemented with immediate effect and those affiliated earlier and not complying with above provisions shall be required to take remedial measures with suitable qualified substitutes within a year positively; Provided further that any violation of rules will lead to the disaffiliation of the school. (3) The term of the members of the Managing Committee shall be three years. A member can be re-nominated for another term but a member cannot remain in office for more than two consecutive terms except ex-officio members and the members of the Trust/ Society of the School. The duties, power and responsibilities of the School Managing Committee shall be as follows and it shall function subject to the control and in accordance with the policy of the Society/ Trust.” there will be nothing left for speculation that the Bihar School Examination Board does not get any power to regulate the service condition of a recognized institution. The over emphasized reliance on the provision of Regulation 17(2)(vii) is also wholly misplaced, inasmuch as it would be evident from the quoted portion that the norms for nominating members of the Managing Committee has been provided therein and as with regard to the Headmaster who is also member of the Managing Committee, it has been provided that he Patna High Court CWJC No.18999 of 2013 (2) dt.13-11-2013 10 should not be related to any member of the school Managing Committee. That will not mean that the Board is regulating the service condition of the teachers including the Headmaster of the School. In fact the Board which has been power to give recognition in the event of flouting of the provision can only cancel recognition as is also clearly mentioned in the impugned order. The Board does not have any other power much less to regulate the service condition of an employee. That being so, this application is wholly misconceived and is accordingly dismissed. If the petitioner is so aggrieved as with regard to removal from the post of Principal/ Headmaster of the College in question he will however have to seek appropriate remedy before the Civil Court by filing a civil suit and if he does so, this Civil Court shall decide the same without being influenced in any manner on the basis of anything said in this order. (Mihir Kumar Jha, J) surendra/-