Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13750 of 2013 ====================================================== Prem Chandra Mahto S/o Sri Harihar Choudhary, R/o Village- Hasanpur Surat, P.O. Patori, P.S.Patori, District-Samastipur. .... .... Petitioner Versus 1. The State Of Bihar, through the Principal Secretary, Human Resources & Development Department, Govt. of Bihar, Patna. 2. The Principal Secretary , Human Resources & Development Department, Govt. of Bihar, Patna. 3. The Director, Secondary Education, Govt. of Bihar, Patna. 4. The District Magistrate, Samastipur 5. The District Education Officer, Samastipur. 6. The Sub-divisional Officer, Patori (Samastipur)-cum-Secretary, Governing Body, Arati Jagdishd Mahila College, Sahpur Patori, Samastipur. 7. The Adhoc Committee, Arati Jagdishd Mahila College, Sahpur Patori, Samastipur, through the Sudivisional Officer, Patori, Samastipur.. 8. The Principal, Arati Jagdishd Mahila College, Sahpur Patori, Samastipur. .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.13759 of 2013 ====================================================== Sunita Kumari, Wife of Sri Upendra Prasad Sah, R/o Village + P.O. Sahpur Undi, P.S. Patori, District-Samastipur. .... .... Petitioner Versus 1. The State Of Bihar, through the Principal Secretary, Human Resources & Development Department, Govt. of Bihar, Patna. 2. The Principal Secretary , Human Resources & Development Department, Govt. of Bihar, Patna. 3. The Director, Secondary Education, Govt. of Bihar, Patna. 4. The District Magistrate, Samastipur 5. The District Education Officer, Samastipur. 6. The Sub-divisional Officer, Patori (Samastipur)-cum-Secretary, Governing Body, Arati Jagdishd Mahila College, Sahpur Patori, Samastipur. 7. The Adhoc Committee, Arati Jagdishd Mahila College, Sahpur Patori, Samastipur, through the Sudivisional Officer, Patori, Samastipur.. 8. The Principal, Arati Jagdishd Mahila College, Sahpur Patori, Samastipur. .... .... Respondents
Legal Reasoning
====================================================== with Civil Writ Jurisdiction Case No.13763 of 2013 ====================================================== Jai Kant Ray S/o Sri Jamun Ray, R/o Village + P.O. Tara Dhamaun, Via Patori, P.S. Patori, District-Samastipur..... .... Petitioner/s Versus 1. The State Of Bihar, through the Principal Secretary, Human Resources & Development Department, Govt. of Bihar, Patna. 2. The Principal Secretary , Human Resources & Development 2 Department, Govt. of Bihar, Patna. 3. The Director, Secondary Education, Govt. of Bihar, Patna. 4. The District Magistrate, Samastipur 5. The District Education Officer, Samastipur. 6. The Sub-divisional Officer, Patori (Samastipur)-cum-Secretary, Governing Body, Arati Jagdishd Mahila College, Sahpur Patori, Samastipur. 7. The Adhoc Committee, Arati Jagdishd Mahila College, Sahpur Patori, Samastipur, through the Sudivisional Officer, Patori, Samastipur.. 8. The Principal, Arati Jagdishd Mahila College, Sahpur Patori, Samastipur. .... .... Respondents ====================================================== Appearance : (In CWJC No.13750 of 2013) For the Petitioner/s : Mr. Dhruba Mukherjee For the Respondent/s : Mr. Chandra Shekhar Singh, AC to GA 16 (In CWJC No.13759 of 2013) For the Petitioner/s : Mr. Dhruba Mukherjee For the Respondent/s : Mr. Subodh Kumar, AC to GP 14 (In CWJC No.13763 of 2013) For the Petitioner/s : Mr. Dhruba Mukherjee For the Respondent/s : Mr. Anirudh Mishra, AC to GP 13 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 22-07-2013 Heard learned counsel for the parties. The prayer of the petitioners, in these writ applications being identical, the same is quoted hereinbelow: (i) For issuance of a direction upon the respondent authorities to consider the case of the petitioner and absorb him against a sanctioned and vacant Class-III post and to pay the petitioner regular salary, particularly in view of the fact that juniors to this petitioner have been absorbed and are being paid regular salary. (ii) For issuance of a direction upon the respondent Director, Secondary Education, Government of Bihar, Patna (Respondent no.3) to take appropriate steps for addition of the 3 name of the petitioner against a sanctioned and vacant Class-III post on the basis of the report of the District Education Officer, Samastipur as contained in his Memo. No.780 dated 16.08.2010 so that the petitioner can get regular salary from the grant in aid provided to the college by the Government of Bihar.” At the outset, Mr. Dhruba Mukherjee, learned counsel appearing in all these cases submits that he will not press prayer made in (i) and will confine to prayer no.(ii). In all these three writ applications thus the issue
Decision
being one and same they are being disposed of by this common order. The petitioners claim to be an employee of Arati Jagdish Mahila College, Sahpur Patori, Samastipur. The said College is an Intermediate level College and is run under the Private Management. The dispute, therefore, whether these petitioners were validly appointed and had continued on sanctioned post or the persons subsequently appointed were working on such sanctioned post, in fact cannot be adjudicated in a writ application inasmuch as such Private College is not state within the meaning of Article 12 of the Constitution of India. The issue that a writ petition will not lie against a Governing Body/Adhoc Committee of an affiliated college has 4 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 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 5 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 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 6 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." The matter has, however, assumed a different dimension altogether. Today the Government has made the College of the petitioners along with other affiliated Colleges, entitled to receive financial assistance by way of under its policy. The grievance, in fact, of the petitioners starts from this stage inasmuch as they have claimed that they were happily working when College was not granted financial assistance by the State Government. The position however according to the petitioners had changed after the full salary has been released to the Governing Body / Adhoc Committee of the College inasmuch as it is alleged that various sort of corrupt practice by the Secretary to the Governing Body/ the Adhoc Committee of the College have been committed to make others beneficiary by frustrating the genuine claim of the petitioners. It is true that the Government 7 also will not have any direct administrative or disciplinary control on the teaching and non-teaching employees of the Private College in the name of release of grant or financial aid but then the government definitely will be entitled to know as to whether the funds, which have been released, are being properly utilized. It is here that the Director, Secondary Education, will have to play significant role inasmuch as if he finds that some Institution though selected for financial aid by the State Government, has been mis-utilizing the fund by making payment to such persons whose appointments itself suffer from basic infirmity on account of the continuance of earlier appointees against the sanctioned post. Thus if he would find evidence of misutilisation of government fund, he may recommend to the State Government to refuse to release the fund to such Institution and also for deleting the name of the Institution from the list of aided Institutions. In view of the fact that the allegations of the petitioners basically revolve round the fact that the Government fund released for the payment of salary of the teaching and non- teaching Staff of the College has not been properly utilized and the petitioners, though eligible for such payment, as held in the report of the District Education Officer, Samastipur dated 16.08.2010 have been denied their payment of salary from the funds released by the State Government, this Court would direct the Director, 8 Secondary Education, to examine the whole thing and take his decision only in respect of payment of salary of the eligible persons from the governmental fund within a period of four months from the date of receipt of this order. It is however made clear that the profile of the Director Secondary Education will remain confined to the issue of alleged misutilisation of governmental financial aid and nothing more inasmuch as if any employee of the college, which is a wholly private institution, is aggrieved by any decision of the Governing Body or Adhoc Committee including its President/Secretary relating to any terms and conditions of their service the only remedy for such persons will be moving the competent civil court. With the aforesaid observations and directions these writ applications are disposed of. A.Ahmad/- (Mihir Kumar Jha, J)