The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK Suryakant Nayak W.P.(C ) NO.15340 of 2015 …. Petitioner Mr. P.C. Chhinchani , Adv. -versus- State of Odisha & Others … Opp. Parties Mr. M.K. Balabantaray, AGA Mr. S.S. Rao, Adv. (for Opp. Party No.4) Mr. S.D. Routray, Adv. (for Opp. Party Nos.5 & 6) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No
Decision
ORDER 11.12.2023 33. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard P.C. Chhinchani, learned counsel appearing for the Petitioner and Mr. S.S. Rao, learned counsel appearing for Opp. Party No.4 and Mr. S.D.Routray, learned counsel appearing for Opp. Party Nos.5 & 6. 3. The present Writ Petition has filed inter alia with the following prayer. <It is therefore, prayed that this Hon’ble Court would be graciously pleased to admit the Writ application, issue Rule NISI in the nature of writ of mandamus or any other writ/writs as deem fit and proper calling upon the Opp. Parties to show cause as to why the service of the Petitioner against the post of Class-IV shall not be regularized and shall not be allowed him regular scale of pay along with consequential benefits and as to why the selection and appointment of night watchman-cum-sweeper if any pursuant to advertisement vide Annexure-4 shall not be set-aside and alternatively why the petitioner shall not be appointed against the post of night watchman-cum-sweeper. In the event, if the Opp. Parties fail to show- cause or show insufficient cause the said rule be made absolute.= 3.1. It is the case of the Petitioner pursuant to the order issued in his favour on 01.08.2012 under Annexure-1, Petitioner while continuing as a Peon, the School in question when issued the advertisement to fill up the post of Peon, apprehending termination from his services, Petitioner filed // 2 // the present Writ Petition inter alia with the prayer indicated hereinabove. 3.2. It is contended that this Court while issuing notice of the matter passed an interim order on 26.08.2015, indicating therein that the process of selection to the Post of Peon pursuant to the advertisement issued under Annexure-4 shall continue, but no appointment shall be made without leave of the Court till 16.09.2015. 3.3. Learned counsel appearing for the Petitioner further contended that as because Petitioner approached this Court by filing the Writ Petition, the Petitioner was not allowed to discharge his duty w.e.f 01.09.2015. It is accordingly contended that since this Court passed an interim order with a direction not to fill up the post of Peon, the action of the managing Committee-Opp. Party No.4 in not allowing the Petitioner to discharge his duty w.e.f 01.09.2015 is not sustainable in the eye of law and so also the process of selection initiated under Annexure-4 to fill up the post of Peon prior to regularizing the services of the Petitioner. 4. Mr. Mishra, learned counsel appearing on behalf of Mr. S.S. Rao, learned counsel appearing for Opp. Party No.4 on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that Petitioner with effect from 01.09.2015 is not coming to the school and the allegation made by the petitioner that he was prevented to discharge his duty w.e.f 01.09.2015 is not true and correct. It is also contended by the learned counsel appearing for Opp. Party No.4 that basing on the selection process initiated under Annexure-4 and prior to passing of the interim order on 26.09.2015, Opp. Party Nos. 5 & 6 were appointed vide order dtd.11.08.2015 and in terms of the said order, they not only Page 2 of 5 // 3 // joined in their respective post of Peon but also they are continuing as on date. 5. Mr. M.K. Balabantaray, learned Addl. Govt. Advocate contended that since the school in question is a minority managed institution, no writ petition is not entertainable. Similar contention was also raised by the learned counsel appearing for Opp. Party Nos.5 & 6 with regard to maintainability of the writ petition against the minority managed institution. 6. Mr. Routray relied on a decision of the Hon’ble Apex Court in the case of St. Mary’s Education Society and Another Vs. Rajendra Prasad Bhargva & Others, reported in (2023) 4 SCC 498. Hon’ble Apex Court in Para 66 & 75 of the said decision has held as follows: the same should not be entertained <66. Merely because a writ petition can be maintained against the private individuals discharging the public duties and/or public functions, if the enforcement is sought to be secured under the realm of a private law. It would not be safe to say that the moment the private institution is amenable to writ jurisdiction then every dispute concerning the said private institution is amenable to writ jurisdiction. It largely depends upon the nature of the dispute and the enforcement of the right by an individual against such institution. The right which purely originates from a private law cannot be enforced taking aid of the writ jurisdiction irrespective of the fact that such institution is discharging the public duties and/or public functions. The scope of the mandamus is basically limited to an enforcement of the public duty and, therefore, it is an ardent duty of the court to find out whether the nature of the duty comes within the peripheral of the public duty. There must be a public law element in any action.= Xxx xxx xxx xxx 75. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public. (b) Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty.It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of <State= within the Page 3 of 5 // 4 // expansive definition under Article 12 or it was found that the action complained of has public law element. (c) It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed the statutory provisions. An educational or controlled by institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service. (d) Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a nonteaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether <A= or <B= is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and nonteaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of nonteaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered by the court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty. (e) From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character.= 7. Having heard learned counsel for the parties and considering the fact that petitioner as per his own admission, is not discharging his duty w.e.f 01.09.2015, this Court while disposing the Writ Petition permits the Petitioner to move an appropriate application before Opp. Party No.2, challenging the action of the Managing Committee in not allowing him to do his duty. Not only that since prior to passing of the interim order on 26.08.2015, process of selection pursuant to Annexure-4 has already been completed with issuance of appointment order in favour of Opp. Party No.5 & 6 on 11.08.2015 and the said order being not under challenge, the challenge made to the selection process pursuant to Annexure-4 has become infructuous. Page 4 of 5 // 5 // 7.1. It is observed if any such application is moved by the Petitioner before Opp. Party No.2 within a period of two (2) weeks from today, Opp. Party No.2 after giving due opportunity of hearing to all concerned shall take a final decision in accordance with law within a period of three (3) months thereafter. 8. Interim order passed on 26.08.2015 stands vacated. With the aforesaid observation and direction, the Writ Petition is disposed of. (Biraja Prasanna Satapathy) Judge Sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 13-Dec-2023 14:36:54 Page 5 of 5