Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.18101 OF 2012 =================================================== 1.BIDYA NAND YADAV S/O LATE YAMUNA PRASAD YADAV RESIDENT OF VILLAGE KURAI CHAPRA, P.O. KHAIRWAR, P.S. REVELGANJ, DISTRICT SARAN, CHAPRA. 2.RAJ KISHORE RAY S/O SRI PUNI RAY RESIDENT OF VILLAGE AND P.O. SAKKADDI, P.S. JALALPUR, DISTRICT SARAN (CHAPRA). .... .... PETITIONER/S VERSUS HUMAN RESOURCES EDUCATION SECONDARY DIRECTOR, PRINCIPAL SECRETARY, 1.THE STATE OF BIHAR. 2.THE DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE DIRECTOR, SECONDARY EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA. 4.THE DEPUTY DEPARTMENT, GOVT. OF BIHAR, PATNA. 5.THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, SARAN DIVISION, CHAPRA. 6.THE DISTRICT EDUCATION OFFICER, SARAN AT CHAPRA. 7.THE DISTRICT MAGISTRATE, SARAN AT CHAPRA. 8.THE BIHAR SCHOOL EXAMINATION BOARD (SENIOR SECONDARY) BUDH MARG, PATNA THROUGH ITS SECRETARY. 9.THE CHAIRMAN, BIHAR SCHOOL EXAMINATION BOARD (SENIOR SECONDARY) BUDH MARG, PATNA. 10.THE SECRETARY BIHAR SCHOOL EXAMINATION BOARD (SENIOR SECONDARY) BUDH MARG, PATNA. 11.THE DY. SECRETARY, BIHAR SCHOOL EXAMINATION BOARD BUDH MARG, PATNA. 12.THE DIRECTOR, BIHAR SCHOOL EXAMINATION BOARD (SENIOR SECONDARY) BUDH MARG, PATNA. 13.THE GOVERNING BODY, JAGLAL RAI COLLEGE, ROUJA, CHAPRA, P.S. CHAPRA, DISTRICT SARAN (CHAPRA). 14.THE SECRETARY, GOVERNING BODY, JAGLAL RAI COLLEGE, ROUJA, CHAPRA, P.S. CHAPRA, DISTRICT SARAN (CHAPRA). 15.THE PRINCIPAL, JAGAL RAI COLLEGE, ROUJA, CHAPRA, P.S. CHAPRA, DISTRICT SARAN (CHAPRA). 16.MANJU KUMARI LECTURER (HINDI LECTURER) JAGLAL RAI COLLEGE, ROUJA, CHAPRA, P.S. CHAPRA, DISTRICT SARAN. .... .... RESPONDENT/S ================================================== Appearance : For the Petitioner/s:Mr. Nagendra Prasad Yadav For the Respondent/s:Mr. Harendra Pd. Singh GA8 =================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER
Facts
Patna High Court CWJC No.18101 of 2012 (2) dt.29-07-2013 2 2/ 29-07-2013 Heard learned counsel for the parties as with regard to the following relief:- "That this is an application for issuance appropriate an writ/writ,order/orders or direction for:- of issued 3166/D-12 (i) Setting aside the order dated 18.02.2012 as contained in letter no. the signature of Deputy Secretary, Bihar School Examination Board, Patna whereby and whereunder the claim and contention of the petitioner have been rejected without considering the facts and documents as furnished. under of (ii) further commanding the respondent authorities to consider the communiquØ B.S.E.B(Senior the Secondary), Patna bearing its no. 43/92 and 31/93 which contention later on asserted vide communiquØ no. 04/09 issued by the B.S.E.B Senior Secondary Budha Marg, Patna." Having regard to the fact that the petitioners were the employees of a private institution which was initially recognized by the Bihar Intermediate Education Council and subsequently has the patronage of Bihar School Examination Board, Senior Secondary Level that by itself will not make either the intermediate Council or the Board, the appointing authority or even the controlling authority in any manner so as to decide the service condition of the petitioner.
Legal Reasoning
wherein,this Court in the order dated 26.04.2011 passed in C.W.J.C No. 14949 of 2010 had held as follows:- “If the petitioners move the Chairman of the Examination Board effort shall be made to decide the matter within a reasonable time frame as it is stated that efforts are on to release money in the hands of the people who are otherwise not eligible or entitled.” From the reading of the aforementioned order it would be very much clear that the issue which was directed to be looked into by the Chairman of the Board was confined to the utilization of fund for the purpose it was released by the State Government. The Chairman has therefore made his limited inquiry and on being informed by the Managing Committee of the private School that the services of the petitioners were terminated long back and that they were not continuing in service of the school, he has rightly come to the conclusion that the power of removal of the petitioners was in the hand of the Governing Body/Managing Committee, the Bihar School Examination Board Patna High Court CWJC No.18101 of 2012 (2) dt.29-07-2013 6 could not have done anything in this regard. The submission of learned counsel for the petitioners that the petitioners had worked for a long period and in fact there was an order of the Intermediate Council not to remove anyone from service cannot be made the subject matter of a writ petition, inasmuch as, all these aspects essentially relating to service condition of the petitioner of the private institution has to be invariably raised and decided by the Civil Court of appropriate jurisdiction and not before this Court because no writ can lie against the Governing Body or the Managing Committee of a private recognized/affiliated institution as was held 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 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 above, judgements indicated Patna High Court CWJC No.18101 of 2012 (2) dt.29-07-2013 7 a a is if is it was that person college indicated reasonable particularly in the case of Smt. Radha Kumari Singh (supra), it was clearly writ petition against a non statutory body such as Governing Body of a private 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 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 having corresponding right may be entitled to seek mandamus. It cannot be said in absolute terms that a writ petition maintainable not against a private aided college even minority institution but the duty sought to be imposed upon a private body through mandamus must be of a public 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 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 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” otherwise Muktajee public nature domain and Patna High Court CWJC No.18101 of 2012 (2) dt.29-07-2013 8 a right 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 of personal 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." That being so, this application is wholly misconceived and is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J)
Arguments
The submission of Mr. Hemendra Prasad Singh, learned senior counsel appearing on Patna High Court CWJC No.18101 of 2012 (2) dt.29-07-2013 3 behalf of the State that since the State Government from the year 2008 has taken policy decision to release of funds to these private institutions, there shall be some sort of control on the service condition of the employees even by the Governmental authorities has to be only noted for its being rejected. The State Government infact has simply come out with a policy to extend financial aid to the institutions for payment of salary to its employees. The Government may, therefore, only allow payment of salary against certain sanctioned post. The issue as to whether who are working on those sanctioned post and where one set of persons have been removed by the Managing Committee legally or illegally for favouring such amount of financial aid will not make the Government appointing authority. It is only this what has been precisely held in the impugned order by the Chairman of the Bihar School Examination Board while passing the following order:- okfn;ksa ,oa izfrokfn;ksa dh mifLFkfr ntZ djus ds i’pkr~ oknh Jh fo|kuUn ;kno ,oa Jh jkt fd’kksj jk; dks viuk fu;qfDr i= fn[kkus dks dgk x;k A nksuksa okfn;ksa }kjk fu;qfDr i= fn[kk;k x;k A Jh ;kno dh fu;qfDr frfFk & 21-12-1983 ,oa Jh jk; dh fu;qfDr frfFk& 30-10- 1991 fu;qfDr i=ksa ij vafdr ik;h x;h A nksuksa okfn;ksa }kjk dgk x;k fd mu nksuksa dks o"kZ & 2005 esa egkfo|ky; dh lsok ls gVk fn;k x;k gS A bl laca/k esa mifLFkr izHkkjh izkpk;Z Jh ckcw yky jk; ls Patna High Court CWJC No.18101 of 2012 (2) dt.29-07-2013 4 Proceeding Book ysdj ns[kk x;k A nksuksa mifLFkr okfn;ksa }kjk dgk x;k fd egkfo|ky; dh iwjh fu;qfDr ,oa Proceeding Book cny nh x;h gS A Proceeding Book esa ns[kk x;k fd Governing Body }kjk fu.kZ; ysdj o"kZ & 2002 esa fnukad 16-06-2002 dks nksuksa okfn;ksa ls Li"Vhdj.k iwNdj fnukad 21-07-2002 dks c[kkZLr fd;k x;k gS A pwfd Governing Body dks Bihar Intermediate Education Council Act - 1992 …fujflr‰ esa fd;s x;s izko/kkuksa ds vUrxZr ;g dkjZokbZ djus dk vf/kdkj gS A blesa fdlh izdkj dk gLr{ksi ugha dh tk ldrh gS A rnqijkUr okfn;ksa }kjk izdkf’kr foKfIr 43@92] 31@93 ,oa 04@2009 dk gokyk fn;s tkus ij mu foKfIr;ksa dks fn[kkus gsrq dgk x;k A okfn;ksa }kjk mUgas fn[kk;k x;k A egkfo|ky; ls gVk;s tkus ds Ik’pkr~ okfn;ksa }kjk ifj"kn~ …fujflr‰ esa dbZ ckj f’kdk;r i= tek djus dh ckr dgh x;h A okfn;ksa }kjk crk;k x;k fd muyksxksa dks egkfo|ky; ls gVkus ;k dkj.k i‘PNk djus ls lacaf/kr fdlh Hkh izdkj dk i= ugha Hkstk@ gLrxr djk;k x;k gS A nksuksa okfn;ksa }kjk iwoZ esa egkfo|ky; }kjk fd;s x;s Hkqxrku ls lacaf/kr vfHkys[kksa dh Nk;kizfr;kWa fn[kk;h x;h A egkfo|ky; esa tks Governing Body/ Managing Committee iwoZ esa Fkh ogha vHkh Hkh dk;Zjr gS A mls f’k{kdksa dh fu;qfDr] inksUufr] c[kkZLrxh dk vf/kdkj gS A okfn;ksa dks o[kkZLr djus ds i’pkr~ fgUnh esa eatw dqekjh rFkk euksfoKku esa jes’k dqekj dh fu;qfDr djus dh lwpuk okfn;ksa }kjk nh x;h A fcgkj fo|ky; ijh{kk lfefr esa okfn;ksa ls f’kdk;r i= izkIr gkssus ds i’pkr~ bl ekeys dks ftyk f’k{kk inkf/kdkjh] lkj.k ls tkWap dj izfrosnu Hkstus gsrq fnukad 16-10-2009 dks i= nh x;h Fkh A ftyk f’k{kk inkf/kdkjh ls izkIr izfrosnu esa vafdr dh x;h gS fd okfn;ksa dks cgqr igys gh ineqDr dj fn;k x;k gS rFkk bldh lwpuk ifj"kn~ dks Hkh nh tk pqdh gS A bu f’k{kdksa dks gVkus dk dkj.k drZO;ghurk ,oa vf/kd fnuksa rd vuqifLFkr crk;k x;k A o"kZ 2008 esa jkT; ljdkj }kjk foRr jfgr f’k{kk uhfr ds lekfIr dh ?kks"k.kk gksus ds i’pkr~ okfn;ksa }kjk ljdkjh vuqnku ds yksHk esa o"kZ & 2010 esa ekuuh; mPp U;k;ky; esa ekeyk nk;j fd;k x;k gS A ;s yksx ykHk ysus ds bPNqd gSa tcfd o"kksZ igys lsok ls foeqDr dj fn;k x;k gS A vr% vkt dh frfFk esa esjs fopkj esa ;s nks oknh Managing Committee }kjk lsok ls c[kkZLr (Dismissed) O;fDr gS] ftlesa esjs }kjk fdlh Hkh izdkj dk gLr{ksi ugha fd;k tk ldrk gS D;ksafd fu;ekoyh ds vuqlkj ;g egkfo|ky; ds izca/ku lfefr ds vf/kdkj {ks= esa gS A f’k{kd ,oa f’k{kdsRrj dfeZ;ksa ds laca/k esa izca/ku lfefr dqN Hkh leqfpr fu.kZ; ys ldrh gS A blfy, nksuksa okfn;ksa ds nkos dks [kkfjt fd;k tkrk gS A fcgkj fo|ky; ijh{kk lfefr mPp ek/;fed] iVuk A g0@& v/;{k Patna High Court CWJC No.18101 of 2012 (2) dt.29-07-2013 5 The Chairman of the Board in fact had passed such order only because of a direction of this Court in an earlier round of litigation,