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2018 Supreme(All) 2319
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Irshad Ali, J.
Sheikh Mohd. Ayyub - Petitioner
Vs.
State Of U.P. Thru. Prin. Secy. Secondary Education & Ors. - Respondent
Service Single No. 37007 of 2018
Decided On : 19-12-2018
For the Petitioner: Mohd. Ali
For the Respondent: C.S.C.
The main legal point established in the judgment is the determination of the maintainability of a writ petition against a private un-aided institution under Article 226 of the Constitution based on the nature of duty performed by the institution.
Headnote:
Transfer - Challenge to transfer order from one branch to another - Societies Registration Act, 1860 - Bye-laws of the Society - Maintainability of writ petition against private un-aided institution under Article 226 of the Constitution - Public function and public duty - Writ jurisdiction of the High Court under Article 226 - Maintainability of writ petition against private educational institution - Writ of certiorari and mandamus - Dismissal of writ petition
Fact of the Case:
The petitioner challenged an order transferring him from one branch to another branch of a private un-aided institution, Al-Huda Muslim Educational Society, U.P., Lucknow. The petitioner contended that the institution, being recognized by the Council for the Indian School Certificate Examination, New Delhi, and providing quality education, was discharging public duties, making the writ petition maintainable under Article 226 of the Constitution. The petitioner also relied on the bye-laws of the Society to challenge the transfer order.
Finding of the Court:
The Court found that the institution was a private un-aided institution and the question of maintainability of a writ petition against such an institution came up for consideration. The Court referred to various judgments and held that a writ petition under Article 226 of the Constitution can be issued not only to a Government or authority but also to any person or authority performing public duty. However, the Court emphasized that the nature of duty performed by such person or body is the determinative factor for the issuance of a writ. The Court concluded that the writ petition against the transfer order from a private un-aided institution was not maintainable.
Issues: The main issue was the maintainability of the writ petition against the transfer order from a private un-aided institution under Article 226 of the Constitution.
Ratio Decidendi: The Court's decision was based on the interpretation of the nature of duty performed by the private un-aided institution and the applicability of public function and public duty in determining the maintainability of the writ petition under Article 226 of the Constitution.
Final Decision: The Court dismissed the writ petition challenging the transfer order from one branch to another branch of the private un-aided institution, holding that the writ petition was not maintainable.
JUDGMENT :
Irshad Ali, J.
1. Heard learned counsel for the petitioner Sri Mohd. Ali and to the learned Standing counsel on behalf of the respondent No.1.
2. By means of the present writ petition, the petitioner has challenged an order dated 22.11.2018, passed by the President, Al-Huda Muslim Educational Society, U.P., Lucknow, whereby the petitioner has been transferred from the main branch to another branch of the institution. In the writ petition, the petitioner has further prayed to permit him to discharge his duties as Vice Principal in the institution and to ensure payment of salary month by month.
3. Factual matrix of the case is that Al-Huda Muslim Educational Society, U.P., Lucknow is a registered Society under the provisions of Societies Registration Act, 1860. The Society runs and manages an educational institution recognized by the Council for the Indian School Certificate Examination, New Delhi from Nursery to Class-12th.
4. The petitioner is holding the post of Vice Principal in Al-Huda Model College, Triveni Nagar-III, Lucknow and by means of the impugned order dated 22.11.2018, he has been transferred to Mehendiganj Branch, Lucknow.
5. Assailing the impugned order dated 22.11.2018, submission of the learned counsel for the petitioner is that the institution is recognized by the Council for the Indian School Certificate Examination, New Delhi and is a private school which provides quality of education and is maintaining standard of education system, therefore, being discharging public duties, the writ petition challenging the order of transfer is maintainable being within the meaning of Article 12 of the Constitution of India. He further submitted that the remedy of civil suit would not be an alternative efficacious remedy to the petitioner. The service of the petitioner is required in the interest of students at large in the institution from where the petitioner has been transferred.
6. He further placed reliance upon Section 1 of the bye-laws of the Society under which the powers and duties of the office bearers have been defined, wherein under sub-Clause-1 of Clause 11, the President has been vested with the powers to appoint, terminate, dismiss, suspend or penalise any employee, legal advisor or subcommittee on the recommendation of the General Secretary.
7. On the strength of the above provision, he submits that there is no recommendation of the General Secretary, therefore, the impugned order is illegal and is not sustainable in law. He further submits that under Clause (a) of sub-Section (3) of Clause 11, the General Secretary shall be the Chief Executive Officer of the Organization who shall officiate at the place of President in absence of President and Vice President, therefore, the impugned order being passed by the President without recommendation of the General Secretary, is wholly without jurisdiction.
8. During the course of submission, a pointed query was made to Sri Mohd. Ali, learned counsel for the petitioner that the institution is a private institution and against the order of transfer, this petition is not maintainable as it does not come within the meaning of Article 12 of the Constitution of India, in reply, he placed reliance upon a judgment in the case of Ramesh Ahluwalia Vs. State of Punjab; 2012 (12) SCC 331, wherein Ramesh Ahluwalia was working as an Administrative Officer in D.A.V. Public School, Lawrence Road, Amritsar since 1.4.1983. On a complaint lodged by one Smt. Jaswinder Kaur, Principal of the school, a disciplinary committee was constituted by appointing an enquiry officer to enquire into the allegations which were levelled in the charge-sheet issued on 17.3.2007. In the enquiry, the charges were found proved and the enquiry report was served upon Ramesh Ahluwalia to submit reply by filing a representation against the same and in response thereto, he submitted his representation detailing his various contentions and upon consideration of the entire matter, the disciplinary authority
