IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3082 of 2003 NAGENDRA SHARMA, SON OF SRI DHOLAN SHARMA, RESIDENT OF “SRI NIDHI”, ROAD NO. 10, PATEL NAGAR, PATNA 800 023. ---------------------------------------------------------------------------------------------------- PETITIONER Versus 1. THE PRSIDENT, GOVERNING BODY, R.P.S. COLLEGE, RAGHUNATH PATH, BAILEY ROAD, DANAPUR, PATNA. 2. THE SECRETARY, GOVERNING BODY, R.P.S. COLLEGE, RAGHUNATH PATH, BAILEY ROAD, DANAPUR, PATNA. 3. THE PRINCIPAL, R.P.S. COLLEGE, RAGHUNATH PATH, BAILEY ROAD, DANAPUR, PATNA. ADDRESS OF ALL ARE R.P.S. COLLEGE, RAGHUNATH PATH, BAILEY ROAD, DANAPUR, PATNA. 4. THE STATE OF BIHAR. 5. MAGADH UNIVERSITY, BODH GAYA BIHAR, THROUGH ITS VICE- CHANCELLOR. ------------------------------------------------------------------------------------------------ RESPONDENTS For the petitioner : Mr. Nagendra Sharma (in person) For the State : Mr. A. Amanullah, G.A. 4 Mr. S. Rahman, A.C. to G.A. 4 For the Managing Committee : Mr. Subhash Chandra Jha, Advocate For the Magadh University : Mr. Hansraj, Advocate … 11 29.3.2011 The petitioner has filed this writ application for payment of arrears of salary since June, 2001 till today and for grant of compensation in the facts of this case. The petitioner was appointed as a Lecturer in Physics in September, 1988 in R.P.S. College situated at Raghunath Path, Bailey Road, Danapur, Patna. The college in question is a degree college and is affiliated to the Magadh University, Bodh- Gaya. This is an unaided college and runs through the Managing Committee of the 2 college. The case of the petitioner is that since June, 2001 he has not been paid his salary and was not allowed to work in the college despite the fact that the petitioner approached the authorities for grant of permission to continue on the post of Lecturer. It has further been stated that in the year 2010 when an ad hoc Committee was constituted for the purposes of managing the college, the petitioner was given vigilance duty which according to the petitioner indicates that he has been treated as a staff of the college. The submission is that in absence of any letter of termination, the petitioner would be entitled to receive the entire salary for the period during which he has been kept out of work and he would also be entitled to claim damages against the college in question. The Secretary of the Governing Body of R.P.S. College has filed a counter affidavit in this case. The main question raised on behalf of the respondent is that the college is an unaided privately run college and as such a writ would not lie against a private institution. It has also 3 been argued that in fact a notice was issued to the petitioner on 16.4.2001 asking him to explain as to why he should not be terminated. The petitioner challenges this notice as it is submitted on his behalf that it was sent through U.P.C. and was never received by the petitioner. It has also been argued that the petitioner had got himself registered in Bar Council in 1993. However, this aspect of the matter cannot be taken into consideration by the Court because the college itself did not recognize the fact that the petitioner was working as an advocate and allowed him to work right up till June, 2001. The question that has to be considered is whether this writ application would be maintainable in the facts of this case? The petitioner has appeared in person. The counsel appearing on behalf of the respondents has referred to several judgments of the Supreme court and the Patna High Court to show that a writ application would not be maintainable against the action of the college authorities. The case referred to on this issue is 4 AIR 1976 SC 888 Executive Committee of the Vaish Degree College, Shamli and others Vs. Lakshmi Narain and others. In this case the aggrieved party filed a suit against the Executive Committee of the Vaish Degree College, Shamli in the district of Muzaffarpur claiming that he had been illegally removed by the Executive Committee of the college from the post of the Principal. The Supreme Court after considering all aspects of the matter including the structure, formation and the statutory rules of the said college came to the conclusion that “A contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however is subject to three well recognized exceptions – (i) where a public servant is sought to be removed from service in contravention of the provisions of Art. 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being 5 dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute.” None of these exceptions apply to the facts of the present case. In the present case, it appears that the statute or the terms of employment between the petitioner and the respondents which have not been brought on record to indicate the violation of any aspect of the statute. In the case of Executive Committee of the Vaish Degree College, Shamli, the Court came to a conclusion that “the plaintiff had worked for a period of two years; that if the suit was to be allowed then the result would be that the plaintiff would be entitled to 9 years of salary; as a consequence upon the declaration the appellant would have to pay a very huge amount running into a lakh of rupees or perhaps more as a result of which the appellant and the institution would perhaps be completely wiped out and this would undoubtedly work serious injustice to the appellant because it is likely to destroy its very existence; it is a fact that the plaintiff respondent is not at fault, but the 6 stark realities, hard facts and extreme hardship of the case speak for themselves and as such the Supreme Court awarded certain amount of money to the plaintiff.” The main question which was sheet anchor of the argument on behalf of the institution was that the degree college was not a statutory body although it was governed by certain statutory provisions and the High Court had erred in holding that merely because of the University Act or the statutes made there under, it must be deemed to be a statutory body. This aspect of the matter has been further discussed by the Supreme Court. This question also came up for consideration in the Patna High court and was decided by a Full Bench judgment in the case of Smt. Manju Devi Vs. The District Superintendent of Education, Bhagalpur and others reported in 1987 PLJR 962. The challenge in the writ application was whether a teacher in a privately managed school (though aided financially by the State) can maintain a writ petition against the termination of his services by such a school. The Full Bench after considering the effect of Take Over Act 7 of 1976 decided that a teacher in a privately managed school even though financially aided by the State cannot maintain a writ petition against termination of the services. I may refer to another judgment of this Court in the case of Chandra Nath Thakur Vs. The Bihar Sanskrit Shiksha Board & Ors., reported in 1999 (1) PLJR 529, specially in view of the fact that the counsel for the petitioner has relied on a judgment reported in AIR 1989 SC 1607 (Shri Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & Ors. Vs. V.R. Rudani & Ors.) to substantiate the claim that a writ would be maintainable against a privately managed college. The question for consideration in the case of Chandra Nath Thakur was (a) whether the provisions of the Bihar Sanskrit Shiksha Education Board Act. 1981 confers any power upon the Board to approve or disapprove the disciplinary action taken by the managing committee against the teachers, (b) whether the managing committee of the school in question subsists in view of the order of dissolution by the Board and lastly (c) 8 whether a writ can be issued by this court against the managing committee? The first question was answered by this court by holding that in Sanskrit schools funded by the State Government, the Board would have administrative control over the affairs of the school except the power of dismissal and termination of teaching and non-teaching staff. The second issue is not very relevant for the purpose of this case whereas the Full Bench after considering the judgment on by the respondents in the case of Shri Anadi Mukta Sadguru (supra), has held that there is no law laid down as to construe that even an order of termination passed by the private managing committee can not be challenged in a writ jurisdiction, although the court has added that institution which gets aid from the State or the Sanskrit Shiksha Board, have an obligation to provide the same facilities and benefits which are available to other similarly situated teachers of Government institutions, deprivation of which is in violation of such right Article 226 of the Constitution. In the case of K. Krishnamacharyulu and others vs. Sri 9 Venkateswara Hindu College of Engineer and others, AIR 1998 SC 295, a similar view has been taken as in the case of Shri Anadi Mukta Sadguru (Supra). The writ petition was filed for issuance of a mandamus to the respondent Trust to pay the salary and allowances, provident fund, gratuity dues in accordance with the rules framed by the University as well as compensation. The question before the Supreme court was whether the Trust can be compelled to pay by way of a writ of mandamus. The Supreme court held that if the rights are purely of a private character, no mandamus can be issued. If the management of the college is purely a private body with no public duty, mandamus will not lie with two exceptions; as in a situation where there is no other efficacious remedy available then a writ of mandamus cannot be denied and secondly, when a public duty is invoked. In the case aforesaid the Supreme court held that the term “authority” would not have a restricted meaning when it involved the enforcement of fundamental rights and the word “authority” would not be confined to 10 statutory authorities and instruments of the State. They would cover any other person or body performing a public duty. What would be relevant, would be the nature of the duty and not the body which is to perform the duty. In such circumstances the trust was directed to make payment to teachers of their legal dues as it was the duty of the management to make such payments. The case is distinguishable from the facts of the case in hand. The present case is a case of termination and demand of payment of salary for the period during which the petitioner was kept out of service. If the petitioner had been denied what was rightfully and admittedly his legal due, then this court could have issued a direction for payment. However, in the present case, as stated above, there is a dispute with respect to the fact as to whether the petitioner in fact continued to work after 2001 in the college in question and as such this court cannot issue any writ of mandamus directing the respondents to make payment to the petitioner. This writ petition is, thus, 11 dismissed. Sanjay/haque ( Sheema Ali Khan, J.)