IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4581 of 2004 Raj Kumar Gupta, S/o Shri Ajay Kumar Gupta, C/o Raj Kumar Hotel, Dumra Road, P.S. Town and Distt. Sitamarhi. -------- Petitioner Versus 1. Central Board of Secondary Education, Education Centre II, Community Centre, Preet Vihar, New Delhi through its Secretary. 2. Director, Central Board of Secondary Education, Education Centre,II, Community Centre, Preet Vihar, New Delhi. 3. DAV College Managing Committee, Chitra Gupta Road, New Delhi, 110 055. 4. Regional Director, DAV Public Schools, Patna Zone, Arya Samaj Mandir Complex, New Bailey Road, Danapur, Patna. 5. Principal, L.S. DAV Public School, Dumra, Sitamarhi. --------- Respondents For the petitioner: Mr. Yogendra Mishra, Advocate. For the C.B.S.E: Sri Vinay Krishna Tripathi, Advocate. ----------- P R E S E N T HON’BLE MR. JUSTICE MIHIR KUMAR JHA ------------ Mihir Kumar Jha,J Having heard Mr. Yogendra Mishra, learned counsel for the petitioner and Sri Vinay Krishna Tripathi, learned counsel for the C.B.S.E. as with regard to the following relief:- “2(i) A writ in the nature of certiorari quashing the letter dt. 15.10.03 issued by the respondent no.3 as contained in Annexure-3, be issued. (ii) An appropriate writ, order or 2 direction commanding the respondents 1 and 2 to consider and dispose of the petitioner‟s representations (Annexure-4 and 5) within a time frame, be issued. (iii) An appropriate writ, order or direction commanding the respondents 3 to 5 to allow the petitioner in continuous service with all emoluments, be issued.” this Court is of the considered opinion that as the DAV College Managing Committee (Respondent no.3) or its Regional Director or the Principal are not the „state‟ within the meaning of Article 12 of the Constitution, no writ application can be maintained by the petitioner as against them. Since the relief no. 2(i) & (iii), as quoted above, are exclusively against the respondent nos.3 to 5, this writ application, must fail only on account of its being not maintainable. 2. Mr. Mishra, however, with reference to the relief sought in paragraph no. 2(ii) of this writ application, has submitted that since the school, in 3 question, though being run by the private Managing Committee, is affiliated to the Central Board of Secondary Education (C.B.S.E.), the C.B.S.E. was required to dispose of the representation filed by the petitioner against the order of his removal from service passed by the Managing Committee of the school. To that extent, he would also rely on Clause-19 of the agreement by virtue of which the petitioner came in service, reading as follows:- “19. The committee and the Party No.1 agree that any dispute arising out of or relating to this contract including any disciplinary action leading to the dismissal or removal from service or reduction in rank etc. shall be referred for arbitration of any person to be nominated by the Chairman of Society running the School and if the arbitrator fails or neglects to act or becomes incapacitated, the Chairman of the society shall nominate any other person to fill the vacancy of arbitrator.” 3. Mr. Vinay Kirshna Tripathy, learned counsel for the C.B.S.E., however, 4 points out that there is no obligation on the part of the C.B.S.E. to look into the service condition of the petitioner, inasmuch as, he was appointed on the post of Teacher by the D.A.V. Public School, Dumra being managed by D.A.V. College Managing Committee. He has also submitted that the C.B.S.E. has no role to play, inasmuch as, C.B.S.E has no disciplinary control over the teaching and non teaching employees of any school having its affiliation. 4. In the considered opinion of this Court, the reliance placed by Mr. Mishra, learned counsel for the petitioner on the aforementioned Clause-19 of the contract as provided in the affiliation Bye laws is wholly misplaced. It has to be taken into consideration in Chapter-VII, prescribing service rules for employees in the affiliation Bye laws, the power of appointment and administrative control as well as disciplinary control of the teaching and non-teaching employees of an affiliated school to C.B.S.E has been vested exclusively in the Managing Committee of 5 such affiliated school. That is how, Bye law 24(1) of Chapter-VII under the heading „Service Rules For Employees‟ lays down that each school affiliated with C.B.S.E shall frame its own service rules for its employees and Bye law 24(2) thereof envisages execution of a service contract between the management of such affiliated school, described on one hand and in the prescribed format of agreement contained in Appendix-III. 5. In this context it would be also useful to extract the beginning paragraph of the covenant of the agreement under the heading “Contract of Service” or Appendix- III which reads as follows:- Appendix III CONTRACT OF SERVICE “An agreement made this_____day of ______one thousand, nine hundred and_______between Mr/Mrs/Miss__________hereinafter called the teacher/employee of school the party No. 1 of the one part and the Governing Body of the school(hereinafter called the committee) the Party No. 2., of the other part. The Committee 6 hereby agrees to serve as ______in the school on the following terms and conditions.” 6. Clause-19 of the Agreement relied by the learned counsel for the petitioner is only part of this contract of service in Appendix-III. Thus from a simultaneous reading of Chapter-VII of the C.B.S.E Bye laws and its Appendix-III, it becomes clear that there is no disciplinary control of C.B.S.E over the teaching and non-teaching employees of the affiliated schools. Such agreement in prescribed format in Appendix- III of C.B.S.E Bye law by way of contract of service has to be entered between the concerned teaching/non-teaching employees of the affiliated school described as Party no. 1, on one part and the governing body described as committee of the affiliated school, on the other. Clause-19, of the same agreement therefore, when it talks referring the matter to arbitration as per the stipulation made in the agreement of service, the same in no way involves much less cast any obligation on C.B.S.E who have no administrative/ disciplinary control over 7 the employees of the affiliated school. 7. The expression Chairman of society running the school used in Clause-19 of Appendix-III does not refer to the Chairman of C.B.S.E and in fact it only refers to the Chairman of the Managing Committee as would be apparent from Bye law- 25 under Chapter-VII prescribing the authorities of the affiliated school including president of the society, Chairman of the Managing Committee etc. Thus on the basis of Clause-19, it cannot be even remotely suggested that in a service contract between the employee and the management of the affiliated school, C.B.S.E has got any role to play, inasmuch as, there is a complete autonomy given to such affiliated school either in the matter of making appointment or removal of such teaching and non-teaching employees of the affiliated school. The appointment of arbitrator, therefore, also can also not be made by the C.B.S.E and the same has to be only done by the Chairman of D.A.V Society. 8. The parting submission of Mr. 8 Mishra that even if the Managing Committee of the school may not be a „state‟ within the meaning of Article 12 of the Constitution but then it is definitely a „person‟ an expression used in Article-226 of the Constitution of India and, therefore, whatever was laid down by the Apex Court in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. Vs. V.R. Rudani & Ors. reported in 1989 SC 1607 would squarely apply to a Managing Committee of a private school and a writ could be issued to both C.B.S.E. as also to the Managing Committee of D.A.V., school in the context of the relief prayed in this writ application is equally misconceived. This aspect in fact has been considered by the Division Bench in the case of Chandra Nath Thakur, Bihar Sanskrit Shiksha Board & Anr, Managing Committee of Shri Bhagirath Madhyamik Sanskrit Vidyalaya & Ors vs The Bihar Sanskrit Shiksha Board &Ors, The State of Bihar & ors, Bihar Sanskrit Shiksha Board & ors reported in 1999(1) PLJR 529, wherein 9 it was held as follows:- “13. Coming to the next question-whether a writ can be issued against the Managing Committee, it would be relevant to notice that neither in the writ petition nor before the Board or the Chairman, any attempt was made by Sri Thakur to challenge the order of termination. But as would appear from the impugned judgment, while questioning the validity of the order of the Chairman, as issue was certainly raised for consideration regarding the validity of such an order on the ground that the Managing Committee having been dissolved by the order of the Chairman, had no jurisdiction to pass an order of termination and that in compliance of the principles of natural justice, since no notice and proper opportunity was ever given to the petitioner, the order of termination has to be declared illegal. Therefore, in these backgrounds, the learned Judge after examining different authoritative pronouncements of the Apex Court as well as this 10 Court, rendered the question in the negative that a teacher of privately managed school, even aided financially by the State Government can not maintain a writ petition against an order of termination, passed by the Managing Committee. 14. Mr. Jha of course placed reliance on a judgment of the Apex Court in the case of Shri Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & Ors., A.I.R 1989 SC 1607, as also a recent decision in the case of K.Krishnamacharyulu & ors vs. Sri Venkateswara Hindu college of Engineering and anr., A.I.R. 1998 SC 295,in support of his submission that although the Managing Committee of the School is purely a private body, writs under Article 226 can be issued, if there are infringement of a right of an employee guaranteed under the constitution. Since, the Managing committee was dissolved by the Chairman, the order passed by such a committee was illegal. He further contended that even if 11 these aspects are ignored, yet the order of termination was bad for want of compliance of principles of natural justice. Therefore, the petitioner, in absence of any alternative remedy would certainly be entitled to a relief under Article 226 of the Constitution. 15.In my view, the decisions of the Apex Court as noticed above, have to be construed and applied in the background of the facts and circumstances of those cases. Because undisputedly no law has been laid down so as to construe that even an order of termination passed by the private Managing Committee can be challenged in a writ jurisdiction. True it is an institution which gets aid from the State or the Board, has the obligation to provide facilities and opportunities to the teaching and non-teaching employees of such institution at par to the employees of similar institutions. Such employees can not be denied the same benefits which are available to others. Therefore 12 in a case where unequal treatment is found amongst the teachers of similar category , certainly a remedy under Article 226 of the Constitution would be available as was also held in the case of K. Krishnamacharyulu & ors. vs. Sri Venkaterswara Hindu College of Engineering and anr.(supra). 16.But the facts of the case in hand being quite different, the analogy of the aforementioned cases, in my view, would not be applicable. In view of different authoritative and unbroken precedents by a longline decisions of the Apex Court including the cases of Executive Committee of Vaish Degree College, Shamli Vs. Lakshmi Narain, AIR 1976 SC 888, Dipak Kumar Biswas vs. Director of Public Instruction & ors., AIR 1987 SC 1422 and a decision of the Full Bench of this Court in the case of Smt. Manju Devi vs. The District Superintendent of Education, Bhagalpur & ors., 1987 PLJR 962, a teacher of a privately managed school, even though financially aided by the State 13 Government or the Board, can not maintain a writ petition against an order of termination from service passed by the Managing Committee. Therefore, in my view, this question has rightly been rendered in the negative. “ 9. As a matter of fact, this Court again in a judgment dated 06.05.2009 in C.W.J.C No. 9828 of 2005(Sanjay Sharad vs. State of Bihar and Ors) had the occasion to consider a similar question in relation to termination of service of a private school, Dayanand School, Mithapur, which in fact is a Government declared minority school. A similar argument in fact was repelled by this Court therein in the following terms-: “In the light of aforesaid submissions of the counsel for the parties the first and foremost question would be as to whether this writ application against an order passed by the Managing Committee of a private and minority declared school is maintainable? Dr. Jha, in order to satisfy this court on the preliminary objection with regard to maintainability of the writ application would 14 straightway place his reliance on a judgment of Apex Court in the case of Manmohan Singh Jaitla Vs. Commissioner, Union Territory of Chandigarh & Ors. reported in 1984 (Supplementary) SCC 540. In the opinion of this Court, the reliance placed on the said judgment is wholly misplaced because therein there was a provision for a tribunal against the decision of the Managing Committee and the decision which was taken by the Deputy Commissioner and the Commissioner exercising power under Section 3 of 1969 Act in respect of the aided school was held to be those of the tribunal. It was in that context the Apex Court had held the writ application to be maintainable as the impugned order was passed by the tribunal. One would fail to understand as to how the said judgment would be of any avail for the facts of the present case wherein a unanimous decision of the Managing Committee of a minority school as communicated through its Secretary is being assailed in a writ application. It is true that the Secretary of the 15 Managing Committee at that point of time was the District Education Officer but nonetheless that decision still would be one of the Managing Committee, which by itself is not an authority much less a „State‟ within the meaning of Article 12 of the Constitution of India. Obviously, the ratio of Manmohan Singh Jaitla case (supra) can not be made applicable to the facts of the present case. Dr. Jha next referred to the judgment of the Apex Court in the case of O.P. Gupta Vs. Union of India & Ors. reported in 1987(4) SCC 328. In the opinion of this Court, the reliance placed on the said judgment seems to be wholly misplaced, inasmuch as, that was the case of an Assistant Engineer in Central Public Works Department who was placed under suspension pending departmental enquiry and was eventually retired compulsorily. Thus, the said judgment in the case of O.P. Gupta (supra) is not an authority that the decision of the Managing Committee is amenable to writ jurisdiction. 16 Dr. Jha then placed his reliance on the judgment of Apex Court in the case of Francis John Vs. Director of Education & Ors. reported in 1989 (Supplementary) (2) SCC 598. In the opinion of this Court, the ratio laid down by the Apex Court in the case of Francis John (supra) will also be of no assistance to the petitioner, inasmuch as, what was held therein was that a writ application against an order of a Government Officer acting under administrative instruction in terms of Rule 74.2 of the Grant-in-aid Code was maintainable. There can be no difficulty in accepting this proposition that if the ultimate decision was taken by the Government or its officer either in terms of statute or even circular, such decision would no longer remain decision of the Managing Committee of the institution and as such, the writ jurisdiction against an order of the Government officer would be maintainable. Here, there is no such statute prescribing the District Education Officer to be the 17 Secretary of the Managing Committee rather than District Education Officer is one of the members of the Managing Committee of a minority school being the Government representative. Such Managing Committee in fact is comprising of different members and in that view of the matter, merely because at that point of time the District Education Officer was made the Secretary of the Managing Committee and had issued the impugned order in terms of the unanimous decision of the Managing Committee, will not make the decision of the Managing Committee one taken by a Government Officer. It is this aspect of the matter which would make the writ application of the petitioner absolutely distinct and different from one which was decided by the Apex Court in the case of Francis John (supra). As a matter of fact, this aspect of the matter that a writ application against a decision of the Managing Committee is not maintainable stands settled by a Division Bench Judgment of this Court in the case of Chandra Nath Thakur Vs. Bihar The Bihar 18 Sanskrti Shiksha Board & Ors. reported in 1999(1) PLJR 529 wherein this Court after considering the decision of the Apex Court in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & Ors. Vs. V.R. Rudani & Ors. reported in AIR 1989 SC 1607 and K. Krishnamacharyulu & Ors. Vs. Sri Venkateswara Hindu College of Engineering and Anr. reported in 1998 SC 295 had held the teacher of privately managing school even though financially aided by the State Government or a Board cannot maintain the writ application against an order of termination from service passed by the Managing Committee. The Division Bench of this Court for this purpose had relied on the judgment of Apex Court in the case of Executive Committee of Vaish Degree College, Shamli Vs. Lakshmi Narain reported in AIR 1976 SC 888 as also in the case of Dipak Kumar Biswas Vs. Director of Public Instruction & Ors. reported in AIR 1987 SC 1422. The aforesaid view of the Division Bench in the case of Chandra Nath Thakur (supra) has 19 been again reiterated by yet another division bench in the case of Trigun Chandra Thakur Vs. State of Bihar and others, in L.P.A. No. 670 of 1999, disposed of on 21.1.2008. The law, therefore, having been settled by two Division Bench judgments of this Court on this score, it must be held that the writ petition assailing the impugned order passed by the Managing Committee of a minority school is not maintainable in the writ jurisdiction of this Court under Article 226 of the Constitution of India.” 10. In view of the aforesaid discussion, this Court would find it difficult to accept the submission of Mr. Mishra, on any count especially when at least two Division Bench judgments of this Court have held that the judgment of the Apex Court in the case of Anadi Mukta (supra) will not be applicable for issuing a writ to a private Management Committee pertaining to its decision of termination of service of an employee of a privately managed school. 20 11. That being so, it has to be necessarily held that this writ application is not maintainable and is fit to be dismissed on this ground alone. 12. It is, however, made clear that nothing said in this order will stand in the way of the petitioner if he would choose to move before a competent Civil Court for the relief sought in this writ application. 13. With the aforementioned observations and directions, this application is dismissed. 14. There would be however no order as to costs. Patna High Court, Dated 22nd November 2010 Rsh/Ranjan/A.F.R (Mihir Kumar Jha, J.)