St. Mary's Educational Society and another v. Rajandra Prasad Bhargava and others

1. Heard Shri Divya Prakash, learned counsel for the petitioner, Shri Pradeep Kumar Singh, learned Additional Chief Standing Counsel for the opposite party nos.1, 4 and 6 as well as Shri Kirti Kar Tripathi, who has filed his vakalatnama' on behalf of opposite party nos.5 and 8.

2. In view of the order proposed, notice to the opposite party nos.3 and 7 is hereby dispensed with.

3. By means of the present writ petition, the petitioner has made following prayers: "(i) ISSUE a writ, order or direction in the nature of Certiorari by quashing impugned order of termination dated 28.02.2024 passed by respondent authority no.8 i.e. Manager, St. Fidelis College, Vikas Nagar, Lucknow contained as annexure no.1 to this writ petition. (ii) ISSUE a writ, order or direction in the nature of mandamus commanding and directing to respondent authority concerned to reinstate the petitioner to her original post with full back wages, benefits, and continuity of service."

4. At the very outset, attention of this Court has been drawn towards the judgement of Apex Court in re: St. Mary's Educational Society and another versus Rajandra Prasad Bhargava and others, 2022 SCC OnLine SC 1091, whereby the Apex Court has held that employees of the private institutions would not have right to invoke the power of High Court under Article 226 of the Constitution of India in respect of the matter relating to the service, where they are not governed or controlled by the statutory provisions.

5. The aforesaid judgement of the Apex Court has been followed by this Court in Special Appeal Defective No.2 of 2018; Devesh Verma versus Christ Church College Throu Principal Hazratganj Lko.And Ors. Paragraph nos.24 to 28 of Devesh Verma (supra) are being reproduced herein-below: "24- After taking into consideration numerous previous decisions, in a recent decision of the Hon'ble Supreme Court in St. Mary's Educational Society and another versus Rajandra Prasad Bhargava and others, 2022 SCC OnLine SC 1091, the Hon'ble Supreme Court has decided the following two questions: - "(a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution? (b) Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?" 25- The Hon'ble Supreme Court has been pleased to answer the questions in the following words: - "69. We may sum up our final conclusions as under:-- (a) 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 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 or controlled by the statutory provisions. An educational 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." (Emphasis supplied) 26- In Committee of Management, St. John Inter College v. Girdhari Singh, (2001) 4 SCC 296, the Hon'ble Supreme Court held that: - "Since no appropriate guidelines have been provided for exercise of power under Section 16-G(3)(a) of the Act, it must be held that such an uncanalised power on the Inspector or the Inspectress would tantamount to an inroad into the power of disciplinary control of the Managing Committee of the minority institution over its employees and as such the said provision would not apply to the minority institution, as was held by this Court in Frank Anthony case (1986) 4 SCC 707. The legislative intent is thus apparent that the legislature never intended to subject the order of termination of an employee of a minority institution to the approval/disapproval of the Selection Board. In this view of the matter, it is difficult for us to hold that an order of termination of an employee of a minority institution cannot be given effect to, unless approved by either the Inspector/Inspectress, as provided in Section 16- G(3)(a) or by the Selection Board, as provided under U.P. Act 5 of 1982. Under the provisions, as they stand, the conclusion is irresistible that the question of prior approval of the competent authority in case of an order of termination of an employee of a minority institution does not arise." 27- From a reading of the aforesaid judgments, the law as summarized in St. Mary's (Supra) is that the employees of a private educational institution would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matters relating to service where they are not governed or controlled by the statutory provisions. In light of St. John Inter College (Supra), the provisions of Section 16 G (3) of the U. P. Intermediate Education Act are not applicable to the teachers employed in private minority institutions. There is no other Statutory provision, which is alleged to have been violated in the instant case. Therefore, we find ourselves in agreement with the view taken by the Hon'ble Single Judge that the Writ Petition filed by a former teacher against the private unaided minority institution challenging the order of his termination and seeking restitution of his service, is not maintainable. 28- The Writ Petition would not maintainable for one more reason that there are several disputed questions of fact involved in the case. The appellant claims that he had been duly selected and appointed, but he has not filed a copy of the appointment letter or a contract of appointment from which his service conditions may be ascertained. The college has contended neither any advertisement had been issued nor any selection was held and on a personal request made by the appellant, he had been orally engaged to work and after he had worked merely for about 4 months, he misbehaved with the Principal of the college and the Principal had filed a First Information Report against him on 31.03.1992. The appellant did not perform his duties since thereafter. Whether or not the appellant was duly selected and appointed, and what were his service conditions, are facts which are in dispute and regarding which no material is available on record. For this reason also, the Writ Petition would not be maintainable."

6. Since the aforesaid facts and legal position could not be disputed by learned counsel for the petitioner, this writ petition is dismissed being not maintainable. No order as to costs. Order Date :- 2.4.2025 Anupam S/- ANUPAM SINGH PATEL High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Shri Divya Prakash, learned counsel for the petitioner, Shri Pradeep Kumar Singh, learned Additional Chief Standing Counsel for the opposite party nos.1, 4 and 6 as well as Shri Kirti Kar Tripathi, who has filed his vakalatnama' on behalf of opposite party nos.5 and 8.

2. In view of the order proposed, notice to the opposite party nos.3 and 7 is hereby dispensed with.

3. By means of the present writ petition, the petitioner has made following prayers: "(i) ISSUE a writ, order or direction in the nature of Certiorari by quashing impugned order of termination dated 28.02.2024 passed by respondent authority no.8 i.e. Manager, St. Fidelis College, Vikas Nagar, Lucknow contained as annexure no.1 to this writ petition. (ii) ISSUE a writ, order or direction in the nature of mandamus commanding and directing to respondent authority concerned to reinstate the petitioner to her original post with full back wages, benefits, and continuity of service."

4. At the very outset, attention of this Court has been drawn towards the judgement of Apex Court in re: St. Mary's Educational Society and another versus Rajandra Prasad Bhargava and others, 2022 SCC OnLine SC 1091, whereby the Apex Court has held that employees of the private institutions would not have right to invoke the power of High Court under Article 226 of the Constitution of India in respect of the matter relating to the service, where they are not governed or controlled by the statutory provisions.

5. The aforesaid judgement of the Apex Court has been followed by this Court in Special Appeal Defective No.2 of 2018; Devesh Verma versus Christ Church College Throu Principal Hazratganj Lko.And Ors. Paragraph nos.24 to 28 of Devesh Verma (supra) are being reproduced herein-below: "24- After taking into consideration numerous previous decisions, in a recent decision of the Hon'ble Supreme Court in St. Mary's Educational Society and another versus Rajandra Prasad Bhargava and others, 2022 SCC OnLine SC 1091, the Hon'ble Supreme Court has decided the following two questions: - "(a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution? (b) Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?" 25- The Hon'ble Supreme Court has been pleased to answer the questions in the following words: - "69. We may sum up our final conclusions as under:-- (a) 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 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 or controlled by the statutory provisions. An educational 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." (Emphasis supplied) 26- In Committee of Management, St. John Inter College v. Girdhari Singh, (2001) 4 SCC 296, the Hon'ble Supreme Court held that: - "Since no appropriate guidelines have been provided for exercise of power under Section 16-G(3)(a) of the Act, it must be held that such an uncanalised power on the Inspector or the Inspectress would tantamount to an inroad into the power of disciplinary control of the Managing Committee of the minority institution over its employees and as such the said provision would not apply to the minority institution, as was held by this Court in Frank Anthony case (1986) 4 SCC 707. The legislative intent is thus apparent that the legislature never intended to subject the order of termination of an employee of a minority institution to the approval/disapproval of the Selection Board. In this view of the matter, it is difficult for us to hold that an order of termination of an employee of a minority institution cannot be given effect to, unless approved by either the Inspector/Inspectress, as provided in Section 16- G(3)(a) or by the Selection Board, as provided under U.P. Act 5 of 1982. Under the provisions, as they stand, the conclusion is irresistible that the question of prior approval of the competent authority in case of an order of termination of an employee of a minority institution does not arise." 27- From a reading of the aforesaid judgments, the law as summarized in St. Mary's (Supra) is that the employees of a private educational institution would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matters relating to service where they are not governed or controlled by the statutory provisions. In light of St. John Inter College (Supra), the provisions of Section 16 G (3) of the U. P. Intermediate Education Act are not applicable to the teachers employed in private minority institutions. There is no other Statutory provision, which is alleged to have been violated in the instant case. Therefore, we find ourselves in agreement with the view taken by the Hon'ble Single Judge that the Writ Petition filed by a former teacher against the private unaided minority institution challenging the order of his termination and seeking restitution of his service, is not maintainable. 28- The Writ Petition would not maintainable for one more reason that there are several disputed questions of fact involved in the case. The appellant claims that he had been duly selected and appointed, but he has not filed a copy of the appointment letter or a contract of appointment from which his service conditions may be ascertained. The college has contended neither any advertisement had been issued nor any selection was held and on a personal request made by the appellant, he had been orally engaged to work and after he had worked merely for about 4 months, he misbehaved with the Principal of the college and the Principal had filed a First Information Report against him on 31.03.1992. The appellant did not perform his duties since thereafter. Whether or not the appellant was duly selected and appointed, and what were his service conditions, are facts which are in dispute and regarding which no material is available on record. For this reason also, the Writ Petition would not be maintainable."

6. Since the aforesaid facts and legal position could not be disputed by learned counsel for the petitioner, this writ petition is dismissed being not maintainable. No order as to costs. Order Date :- 2.4.2025 Anupam S/- ANUPAM SINGH PATEL High Court of Judicature at Allahabad, Lucknow Bench