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Subhash Samvatsar and A.P. Shrivastava, JJ.
Sunil Kumar Saxena v. Holy Cross Ashram Higher Secondary
School, Datia and others
Writ Appeal No. 138 of 2009 (Gwalior); Decided on 27.8.2009.
Brief facts of the case are that the appellant approached this Court stating that he was appointed as a direct recruit with respondent No.1 Holy Cross Ashram Higher Secondary School, Datia as a Lecturer (Chemistry) on 1.2.2005 and since then he was imparting education to the students of Classes X to XII. It is alleged that the respondent school is affiliated to Board of Secondary Education, Madhya Pradesh, Bhopal and is governed by the provisions of Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965. On 4.2.2008, the appellant applied to the respondent No.1 institution for grant of experience certificate. The respondent institution issued a certificate showing the designation of the appellant as Assistant Teacher (Science) on 6.2.2008. Appellant protested against the same on which the petitioner was orally asked to resign and his services were dispensed with by an oral order. Hence, he approached this Court by filing a writ petition under Article 226/227 of the Constitution. [Para 2
Held : No writ petition is maintainable against an unaided educational institution; same will lie if element of public law is involved. In a case of termination of an employee the grievance is personal in nature and, therefore, element of public law is not involved.
Contention of Shri Bharadwaj, learned senior advocate for the appellant that there are statutory rules, i.e., the Adhiniyam and Regulations framed thereunder and its violation is concerned this ground also is of no help to the appellant because mere violation of rules by any citizen or person will not include him in the definition of Article 12 of the Constitution of India. If a person violates any particular law, it will not mean that he will be amenable to writ jurisdiction under Article 226/227 of the Constitution of India. (1997)3 SCC 571, Writ Petition No.1176 of 2004 and AIR 2003 SC 355 distinguished. AIR 2005 SC 3226, (2006)7 SCC 680 and (2005)4 SCC 649 followed. [Paras 23 & 24
Hkkjr dk lafo/kku && vuq- 226@227 rFkk 12 && deZpkjh lsok ls vfHkeqDr fd;k x;k && yksd fof/k dk rRo varoZfyr ugha && lgk;rk u ikus okyh "kSf{kd laLFkk ds fo:) fjV ;kfpdk pyus ;ksX; ugha && fdlh O;fDr }kjk fu;eksa dk vfrdze.k && mls vuq-12 esa ;Fkk ifjHkkf"kr jkT; esa lfEefyr ugha djrkA ekeys ds laf{kIr rF; ;g gSa fd vihykFkhZ bl U;k;ky; ds le{k ;g dFku djrs gq, vk;k fd og izR;FkhZ dz-1 gksyh dzkWl vkJe gk;j lsdsaMjh Ldwy] nfr;k esa 1-2-2005 dks izk/;kid ¼jlk;u "kkL=½ ds :i esa lh/ks HkrhZ dj fu;qDr fd;k x;k Fkk vkSj og rc ls d{kk 10 ls 12 ds Nk=ksa dks f‘k{kk iznku dj jgk FkkA vfHkdfFkr gS fd izR;FkhZ fo|ky; ek/;fed f‘k{kk eaMy] e/; izns‘k] Hkksiky ls lac) gS rFkk e/; izns‘k ek/;fed f‘k{kk vf/kfu;e] 1965 ds mica/kksa }kjk ‘kkflr gSA 4-2-2008 dks vihykFkhZ dks vihykFkhZ us vuqHko izek.ki= iznku fd, tkus ds fy, izR;FkhZ dz-1 laLFkk dks vkosnu fn;kA izR;FkhZ laLFkk us 6-2-2008 dks vihykFkhZ dk inuke lgk;d f‘k{kd ¼foKku½ n’kkZrs gq, izek.ki= tkjh fd;kA vihykFkhZ us bldk fojks/k fd;k ftl ij ;kph dks R;kxi= nsus ds fy, ekSf[kd :i ls dgk x;k rFkk ekSf[kd :i ls dgk x;k rFkk ekSf[kd vkns‘k }kjk mls lsok ls vfHkeqDr dj fn;k x;kA vr%] og lafo/kku ds vuqPNsn 226@227 ds v/khu fjV ;kfpdk Qkby dj bl U;k;ky; ds le{k vk;kA ¼iSjk vfHkfu/kkZfjr % lgk;rk u ikus okyh "kSf{kd laLFkk ds fo:) fjV ;kfpdk pyus ;ksX; ugha gksrh( og rHkh xzkg~; gksxh ;fn yksd fof/k dk rRo varoZfyr gksA deZpkjh dh lsoklekfIr ds ekeys esa f‘kdk;r O;fDrxr izd`fr dh gksrh gS blfy, yksd fof/k dk rRo varoZfyr ugha gSA vihykFkhZ dh vksj ls fo}ku T;sB vf/koDrk Jh Hkkj}kt dk ladFku gS fd dkuwuh fu;e vFkkZr~ vf/kfu;e vkSj mlds v/khu fojfpr fofu;e gSa rFkk budk vfrdze.k lacaf/kr gS] ;g vk/kkj Hkh vihykFkhZ ds fy, lgk;d ugha gS D;ksafd fdlh ukxfjd ;k O;fDr }kjk fu;eksa ds vfrdze.k ek= ls og Hkkjr ds lafo/kku ds vuqPNsn 12 dh ifjHkk"kk esa lfEefyr ugha gksxkA ;fn O;fDr fdlh fof’k"V fof/k dk vfrdze.k djrk gS rc bldk ;g vFkZ ugha gksxk fd og Hkkjrr ds lafo/kku ds vuqPNsn 226@227 ds v/khu fjV vf/kdkfjrk ds v/;/khu gksxkA ¼1997½3 ,l lh lh 571] fjV ;kfpdk dz-1176 lu~ 2004 rFkk , vkb vkj 2003 ,l lh 355 izHksfnrA , vkb vkj 2005 ,l lh 3226] ¼2006½7 ,l lh lh 680 rFkk ¼2005½4 ,l lh lh 649 vuqlfjrA ¼iSjk 23 ,oa 24
Samvatsar, J. -- 1. This writ appeal is filed by the petitioner assailing order dated 25.2.2009 passed by learned Single Judge of this Court in Writ Petition No.2837/08(S) whereby the writ petition filed by the present appellant stood dismissed on the ground that the writ petition was not maintainable.
2. Brief facts of the case are that the appellant approached this Court stating that he was appointed as a direct recruit with respondent No.1 Holy Cross Ashram Higher Secondary School, Datia as a Lecturer (Chemistry) on 1.2.2005 and since then he was imparting education to the students of Classes X to XII. It is alleged that the respondent school is affiliated to Board of Secondary Education, Madhya Pradesh, Bhopal and is governed by the provisions of Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965. On 4.2.2008, the appellant applied to the respondent No.1 institution for grant of experience certificate. The respondent institution issued a certificate showing the designation of the appellant as Assistant Teacher (Science) on 6.2.2008. Appellant protested against the same on which the petitioner was orally asked to resign and his services were dispensed with by an oral order. Hence, he approached this Court by filing a writ petition under Article 226/227 of the Constitution.
3. Respondent institution, on notice in the writ petition, filed its short reply raising a plea that the respondent school is an unaided institution and is, therefore, not amenable to writ jurisdiction under Article 226 of the Constitution. It was contended by the respondent that the respondent institution is a minority institution and does not fall within the definition of the "State" as defined in Article 12 of the Constitution of India.
4. The learned writ Court held that unaided educational institutions are amenable to writ jurisdiction of this Court only if element of public law is involved, hence, the writ petition filed by the petitioner is not maintainable. The learned writ Court, therefore, dismissed the writ petition. Hence, this appeal.
5. Shri VK. Bharadwaj, learned senior advocate with Shri Anand Bharadwaj, appearing on behalf of the appellant, contended that the learned writ Court has committed error in holding respondent institution is not a "State" within the meaning of Article 12 of the Constitution of India. He contended that the respondent is governed by statutory rules namely Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965 (hereinafter referred to as "Adhiniyam"). He invited attention of this Court to section 28(2)(d) of the Adhiniyam which gives powers to the Board to make regulations. Board is defined in 2(a) of the Adhiniyam and· means the Board of Secondary Education established under section 3. Clause (d) of section 28(2) of the Adhiniyam gives powers to the Board to make regulations imposing conditions of recognition of institutions for purposes of admission to the privileges of the Board, the qualification and condition of service of teachers and framing of a School Code to ensure a minimum standard of efficient and uniform management of such institutions. Thus, according to Shri Bharadwaj, it is the statutory duty of the Board of Secondary Education to lay down qualifications and conditions of service of teachers and frame a School Code to ensure minimum standard of education.
6. Counsel for the appellant has also invited attention of this Court to Regulations 70, 71 and 78 framed under the Adhiniyam. Regulation 70 framed under the Adhiniyam provides that the Regulations shall apply to all non-Government educational institutions. Regulation 71 provides for service conditions of all Principals, Headmasters, Lecturers, and Teachers, except those appointed temporarily for a period of less than one year. Regulation 78 provides that managing committee of the institution shall not terminate the service or reduce the pay of any teacher or lecturer appointed on a written contract without holding a full enquiry into the ch
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