IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN th ON THE 11 OF NOVEMBER, 2024 WRIT PETITION No. 34211 of 2024 RAJKUMAR PANDEY Versus ADMINISTRATOR Appearance:

Shri Mithilesh Prasad Tripathi - Advocate for the Petitioner.

ORDER Challenge in the present petition is made to the notice Annexure P-3 and Annexure P-5 dated 19.06.2024 and 27.06.2024 respectively whereby the petitioner has been intimated that on account of shortage of strength of students in the School, the petitioner would be retired on attaining the age of 58 years w.e.f.30.06.2024 alongwith pay of three months in lieu of notice period.

2. The case of the petitioner is that he is working in Saraswati Shishu Mandir, Nehru Nagar, Rewa since long as a teacher and he should have been retired on attaining the age of 60 or 62 years but wrongfully, he has been retired on attaining the age of 58 years w.e.f.30.06.2024 on the pretext of shortage of strength of students in the School. A prayer is made to retain the petitioner in service till attaining the age of 60 years.

3. The School in question is Saraswati Shishu Mandir, Nehru Nagar, Rewa which is not a State owned or State run School but is a totally private school run by a private Society, though may be imparting education to Signature Not Verified students from general public. No averments have been made in the petition that in what manner, a Private School not receiving grant from the State can be said to be an authority in terms of Article 12 of Constitution of India so as to warrant issuance of writ against such a private educational institution.

4. Learned counsel for the petitioner when faced with such a situation only stated that the School is affiliated to Board of Secondary Education and is subjected to regulatory control of Board of Secondary Education and is also recognized by the State Govt. and therefore, it should be deemed to be and treated to be an authority or instrumentality of the State in terms of Article 12 of the Constitution of India.

5. It is settled in law that a body being subjected to regulatory control of State cannot be said to be instrumentality of the State in terms of Article 12 of the Constitution of India only for the reason under regulatory control. No infringement of fundamental right has been projected in the present petition so as to warrant issuance of writ even against a private institution.

6. Recently, the Hon’ble Apex Court had the occasion to consider the entire law on the subject including the judgments relied by the petitioner. The judgment in case of Ramesh Ahluwalia Vs. State of Punjab and Ors, Ramesh Ahluwalia Vs. State of Punjab and Ors, (2012) 12 SCC 331(2012) 12 SCC 331 has been declared per incuriam by the Hon’ble Supreme Court and the judgment in case of Marwari Balika Vidyalaya Vs. Asha Marwari Balika Vidyalaya Vs. Asha Shrivastava and Ors, 2020 (14) SCC 449 Shrivasstava and Ors, 2020 (14) SCC 449 has been distinguished. The Hon’ble Supreme Court in the case of St. Mary's Education Society v. St.

Signature Not Verified Mary's Education Society v. Rajendra Prasad Bhargava & others Rajendra Prasad Bhargava & others reported in 2023 (4) SCC 4982023 (4) SCC 498 has held as under :-

"61. In Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S) 854] , this Court followed Ramesh Ahluwalia [Ramesh Ahluwalia v. State of Punjab, (2012)

12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715] referred to above." 62. We may say without any hesitation that Res62. We may say without any hesitation that Respondent 1 herein cannot press into service the dictum as laid down by this Court in Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S) 854] as the said case is distinguishable. The most important distinguishing feature of Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S) 854] is that